Common use of Employee and Labor Matters; Benefit Plans Clause in Contracts

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and to the Knowledge of the Company, no Person has threatened to commence, any such slowdown, work stoppage, labor dispute or union organizing activity or any similar

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): Except: (i) as set forth in Part 2.16(a) of the name of such employee, the Acquired Corporation by which such employee is employed Company Disclosure Schedule; and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementfor International Employees, the employment of each of the Acquired Corporations' employees Company Employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To the Knowledge knowledge of the Company, : (i) no officer or other employee at the level of Vice President or above or having a base salary of at least $175,000 has communicated any intention to terminate his or her employment with any of the Acquired Corporations Corporations; and (ii) no Company Employee is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to may have a material adverse effect on the business or operations of any of the Acquired Corporations taken as a wholeCorporations. (dc) As Except as set forth in Part 2.16(c) of the Company Disclosure Schedule, as of the date of this Agreement, none of the Acquired Corporations is a party to, or has a duty to or bound by bargain for, any union Contract or collective bargaining agreement. (e) As agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the date Company, seeking to represent any employees of this Agreement, none any of the Acquired Corporations is engaged in any unfair labor practice of any natureCorporations. From Since January 1, 2002 through the date of this Agreement2003, there has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. There is not now pending, and, to the knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question regarding representation or union organizing activity or any similar activity. There is no claim or grievance (or, in the case of workers' compensation policies and long term disability policies, material claim or grievance) pending or, to the knowledge of the Company, threatened in writing relating to any employment Contract, wages and hours, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers' compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (d) None of the current or former independent contractors of any of the Acquired Corporations could be reclassified as an employee, except as would not have and would not reasonably be expected to have or result in a Company Material Adverse Effect. (e) The Company has delivered to Parent an accurate and complete list, by country and as of the date hereof, of each Company Employee Plan and each Company Employee Agreement: (i) involving obligations in excess of $175,000; or (ii) that constitutes a "material contract" (as such term defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC). Except as provided in this Agreement, none of the Acquired Corporations intends, and none of the Acquired Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements). (f) The Company has delivered to Parent accurate and complete copies of, as of the date of this Agreement: (i) all documents setting forth the material terms of each Company Employee Plan, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all material correspondence since January 1, 2003 to or from any Governmental Body relating to any Company Employee Plan; (vii) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (viii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (g) Each of the Acquired Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in all material respects in accordance with its terms, except as would not have and would not reasonably be expected to have or result in a Company Material Adverse Effect. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code (or has applied, or has time remaining in which to apply, to the IRS for such a determination letter prior to the expiration of the requisite period under applicable Treasury Regulations or IRS pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination letter). All Company Pension Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Company, has revocation been threatened) and, to the knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Pension Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. To the knowledge of the Company, each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that could reasonably be expected to result in the disqualification of any such Company Employee Plan. No "prohibited transaction," within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liability to Parent, any of the Acquired Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened in writing by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan. None of the Acquired Corporations, and no Company Affiliate, has ever incurred: (i) any material penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the Acquired Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan. (h) None of the Acquired Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) "multiemployer plan" within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code. None of the Acquired Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Acquired Corporations or any Company Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations, except as would not have and would not reasonably be expected to have or result in a Company Material Adverse Effect. There are no liabilities of the Acquired Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (i) None of the Acquired Corporations, and no Company Affiliate, maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Acquired Corporations or any Company Affiliate), or reflects or represents any liability of any of the Acquired Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. To the knowledge of the Company, other than commitments made that involve no future costs to any of the Acquired Corporations or any Company Affiliate, none of the Acquired Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person in a legally binding manner that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (j) Except as set forth in Part 2.16(j) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or could reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under the Change in Control Resolutions or any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (k) Except: (i) as set forth in Part 2.16(k) of the Company Disclosure Schedule; or (ii) as would not have and would not reasonably be expected to have or result in a Company Material Adverse Effect, each of the Acquired Corporations and Company Affiliates: (A) is, and at all times has been, in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (B) has withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (C) is not liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (D) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practice), except as would not and would not reasonably be expected to result in any liability that is material to the Acquired Corporations taken as a whole. (l) As of the date of this Agreement, there is not now pendingno agreement, plan, arrangement or other Contract covering any Company Employee, and no payments have been made or will be made to any Company Employee, that, considered individually or considered collectively with any other such Contracts or payments, will, or could reasonably be expected to, be characterized as a "parachute payment" within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the Knowledge payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No Acquired Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code. (m) Neither the execution nor the delivery of this Agreement, nor the carrying on of the business of any Acquired Corporation or any Company Affiliate as presently conducted nor any activity of any Company Employee in connection with the carrying on of the business of any Acquired Corporation or any Company Affiliate as presently conducted will or could reasonably be expected to, to the knowledge of the Company, no Person has threatened to commenceconflict with, result in a breach of the terms, conditions or provisions of or constitute a default under any Contract under which any such slowdownCompany Employee is now bound. (n) Since January 1, work stoppage2003, labor dispute none of the Acquired Corporations has effectuated a "plant closing," partial "plant closing," "relocation", "mass layoff" or union organizing activity "termination" (as defined in the Worker Adjustment and Retraining Notification Act or any similarsimilar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the Acquired Corporations. (o) Except as set forth in Part 2.16(o) of the Company Disclosure Schedule, since January 1, 2002, no Acquired Corporation has undertaken any option re-pricing or option exchange program.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 3.16(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Symyx Corporations' ’ employees is terminable by the applicable Acquired Symyx Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To Except as set forth in Part 3.16(b) of the Knowledge Company Disclosure Schedule, none of the Symyx Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureSymyx Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Symyx Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. Except as set forth in Part 3.16(b) of the Company Disclosure Schedule, there is no claim or grievance pending or, to the knowledge of the Company, threatened relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, by country and as of the date of the First Merger Agreement, of each Company Employee Plan and each Company Employee Agreement. None of the Symyx Corporations intends, and none of the Symyx Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to any minimum funding standards (including those of Section 302 of ERISA), the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (vii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (e) Each of the Symyx Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in all material respects in accordance with its terms. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Company Employee Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Company Employee Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Symyx Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan. Except as set forth in Part 2.16 of the Company Disclosure Schedule, there are no pending or, to the knowledge of the Company, threatened claims or Legal Proceedings involving any Company Employee Plan other than routine claims for benefits. None of the Symyx Corporations, and no Company Affiliate, has ever incurred any material penalty or Tax with respect to any Company Employee Plan under applicable Legal Requirements. Each of the Symyx Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion prior to, on or after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code. (f) None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Symyx Corporations or any Company Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Company Foreign Plan, the liability of each insurer for any Company Foreign Plan funded through insurance, or the book reserve established for any Company Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Company Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations. There are no liabilities of the Symyx Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (g) No Company Employee Plan that is an employee welfare benefit plan (whether or not ERISA applies to such Company Employee Plan) is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Symyx Corporations or any Company Affiliate), or reflects or represents any liability of any of the Symyx Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the Symyx Corporations or any Company Affiliate, none of the Symyx Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 3.16(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 3.16(i) of the Company Disclosure Schedule, each of the Symyx Corporations and Company Affiliates: (i) is, and since January 1, 2008 has been, in compliance in all material respects with all Legal Requirements and any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (ii) has paid all wages, salaries and other payments to Company Associates at the time required by all Legal Requirements and has withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the ordinary course of business and consistent with past practice). (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No Symyx Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for additional taxes payable pursuant to Section 409A of the Code. (k) Each of the Symyx Corporations is, and has been at all times since January 1, 2008, in compliance in all material respects with the Worker Adjustment and Retraining Notification Act or any similar Legal Requirement. (l) Each of the Company Option Plans and the Company ESPP has been approved by the Company’s stockholders to the extent required by applicable Legal Requirements.

Employee and Labor Matters; Benefit Plans. (a) The Company Section 2.13(a) of the Seller Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respectsforth, with respect to each employee of each the nine most highly compensated employees of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status):Cyclacel: (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's ’s title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As employee’s annualized compensation as of the date of this Agreement. (b) Cyclacel has made available to Xcyte accurate and complete copies of all material employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of each of Cyclacel Associates to the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days)extent currently effective and material. (c) To the Knowledge of the CompanySeller, no officer of Cyclacel intends to terminate his employment with Cyclacel, nor has any such employee of threatened or expressed any of the Acquired Corporations is a party intention to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a wholedo so. (d) As of the date of this Agreement, none of the Acquired Corporations Cyclacel is not a party to, nor bound by, nor has a duty to or bound by bargain under, any union Contract or collective bargaining agreementagreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing, purporting to represent or, to the Knowledge of Seller, seeking to represent any employees of Cyclacel. (e) As There are no, nor, to the Knowledge of the date of this AgreementSeller, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, has there has not been any threat of, any strike, slowdown, work stoppage, labor dispute or union lockout, job action, union, organizing activity, question concerning representation or any similar activity or dispute, affecting any of the Acquired Corporations Cyclacel or any of their its employees. As of the date of this AgreementNo event has occurred, there is not now pendingand, and to the Knowledge of the CompanySeller, no Person has threatened condition or circumstance exists, that might directly or indirectly be likely to commence, give rise to or provide a basis for the commencement of any such strike, slowdown, work stoppage, lockout, job action, union organizing activity, question concerning representation or any similar activity or dispute. (f) There is no Legal Proceeding, claim, labor dispute or union organizing activity grievance pending or, to the Knowledge of Seller, threatened or reasonably anticipated relating to any similaremployment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any Cyclacel Associate, including charges of unfair labor practices or discrimination complaints, except for routine claims and disputes in the ordinary course of business. (g) Section 2.13(g) of the Seller Disclosure Schedule lists all material written and describes all non-written employee benefit plans (as defined in section 3(3) of ERISA) and all bonus, equity-based, incentive, deferred compensation, retirement or supplemental retirement, profit sharing, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs and other similar fringe or employee benefit plans, programs or arrangements, including any employment or executive

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees Company Employees (i) in the United States is terminable by the applicable Acquired Corporation at will and without material liability for any severance, termination or similar post-termination payment or benefit except as required by applicable Legal Requirements and (subject to ii) outside of the United States can be terminated without material liability for any severance, termination, pension or similar post-termination payment or benefits in excess of amounts (including notice periods not longer than sixty (60pay) days)strictly required by applicable Legal Requirements. (cb) To the Knowledge knowledge of the Company: (i) no officer or other employee or consultant at the level of director or above or having a base salary of at least $100,000 intends to, no employee of or has communicated any intention to, terminate his or her service with any of the Acquired Corporations Corporations; and (ii) no Company Employee is a party to or is bound by any confidentiality agreement, noncompetition non-competition agreement or other Contract (with any Personprior employer) that is reasonably likely to may have a material adverse effect on the business or operations of any of the Acquired Corporations taken as a wholeCorporations. (dc) As To the knowledge of the date of this AgreementCompany, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreementagreement or other Contract with a labor organization or works council representing any of the Company Employees and there are no labor organizations or works councils representing or, to the knowledge of the Company, seeking to represent any Company Employees. There is not now pending any strike, slowdown, work stoppage, lockout, picketing, labor dispute, union organizing activity, or to the knowledge of the Company, any threat thereof, affecting any of the Acquired Corporations. There is no claim pending or, to the knowledge of the Company, threatened against the Acquired Corporations relating to any employment Contract, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (ed) As To the knowledge of the date of this AgreementCompany, none of the current or former individual independent contractors of any of the Acquired Corporations is engaged or was misclassified as an employee, except as could not reasonably be expected to result in a material liability to any unfair labor practice of Acquired Corporation. There is not, and at no time has there been, any nature. From January 1, 2002 through the date of this Agreement, there individual independent contractor who has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting provided services to any of the Acquired Corporations or any Company Affiliate for a period of their employees. As six consecutive months or longer. (e) Part 2.16(e) of the date Company Disclosure Schedule is an accurate and complete list of each Company Employee Plan, each Foreign Plan and each Company Employee Agreement. None of the Acquired Corporations intends, and none of the Acquired Corporations has committed, to establish or enter into any new Company Employee Plan, Foreign Plan or Company Employee Agreement, or to modify any Company Employee Plan, Foreign Plan or Company Employee Agreement (except to conform any such Company Employee Plan, Foreign Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements or as required by this Agreement). (f) The Company has Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan, there Foreign Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan and Foreign Plan; (iii) if the Company Employee Plan or Foreign Plan is not now pending, and subject to the Knowledge minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of the Companyplan’s assets, no Person has threatened to commence, any such slowdown, work stoppage, labor dispute or union organizing activity or any similarif any; (iv) the most recent summary plan description together with the summaries of material modifications thereto,

Employee and Labor Matters; Benefit Plans. (a) The Company Except as set forth in Part 3.18(a) of the Parent Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Xxxx Corporations' ’ employees is terminable by the applicable Acquired Corporation Xxxx Corporations at will (subject to notice periods not longer than sixty (60) days)will. (cb) To the Knowledge Except as set forth in Part 3.18(b) of the CompanyParent Disclosure Schedule, none of the Xxxx Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no employee labor organizations or works councils representing, purporting to represent or, to the knowledge of the Parent, seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureXxxx Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Xxxx Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the CompanyParent, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. There is no claim or grievance pending or, to the knowledge of the Parent, threatened against any Xxxx Corporations relating to any employment Contract, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Parent Associate, including charges of unfair labor practices or harassment complaints. (c) Parent has delivered or Made Available to the Company an accurate and complete list, by country and as of the date hereof, of each Parent Employee Plan and each Parent Employee Agreement. None of the Xxxx Corporations intends, and none of the Xxxx Corporations has committed, to establish or enter into any new Parent Employee Plan or Parent Employee Agreement, or to modify any Parent Employee Plan or Parent Employee Agreement (except to conform any such Parent Employee Plan or Parent Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to the Company in writing or as required by this Agreement). There has been no amendment to, announcement by any Xxxx Corporation relating to, or change in employee participation or coverage under, any Parent Employee Plan that would materially increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable. (d) The Parent has delivered or Made Available to the Company accurate and complete copies of: (i) all documents setting forth the terms of each Parent Employee Plan and each Parent Employee Agreement, including all amendments thereto; (ii) the two most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Parent Employee Plan; (iii) if the Parent Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Parent Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Parent Employee Plan; and (v) all material correspondence in its possession regarding any Parent Employee Plan regarding any audit, investigation or proceeding regarding such Parent Employee Plan or any fiduciary thereof. (e) Each of the Xxxx Corporations and Parent Affiliates has performed in all material respects all obligations required to be performed by it under each Parent Employee Plan and Parent Employee Agreement, and each Parent Employee Plan and Parent Employee Agreement has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements. Any Parent Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Parent Pension Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Parent, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Parent Pension Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Parent Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Parent Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Parent Employee Plan. Each Parent Employee Plan (other than any Parent Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Xxxx Corporations or any Parent Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Parent, threatened by the IRS, the DOL or any other Governmental Body with respect to any Parent Employee Plan or any fiduciary thereof. None of the Xxxx Corporations, and no Parent Affiliate, has ever incurred: (i) any material penalty or Tax with respect to any Parent Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the Xxxx Corporations and Parent Affiliates has made all contributions and other payments required by and due under the terms of each Parent Employee Plan and each Parent Employee Agreement. (f) None of the Xxxx Corporations, and no Parent Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Parent Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Parent Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Xxxx Corporations, and no Parent Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Parent Pension Plan in which stock of any of the Xxxx Corporations or any Parent Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations. There are no material liabilities of the Xxxx Corporations with respect to any Parent Employee Plan that are not properly accrued and reflected in the financial statements of the Parent in accordance with GAAP. Nothing has occurred that could result in a material increase in the benefits under or the expense of maintaining any Parent Employee Plan from the level of benefits or expense incurred for the most recently completed fiscal year. (g) None of the Xxxx Corporations, and no Parent Affiliate, maintains, sponsors or contributes to any Parent Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Parent Employee Plan provides (except at no cost to the Xxxx Corporations or any Parent Affiliate), or reflects or represents any liability of any of the Xxxx Corporations or any Parent Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the Xxxx Corporations or any Parent Affiliate, none of the Xxxx Corporations nor any Parent Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Parent Associate (either individually or to Parent Associates as a group) or any other Person that such Parent Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 3.18(h) of the Parent Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Parent Employee Plan, Parent Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Parent Associate. (i) Except as set forth in Part 3.18(i) of the Parent Disclosure Schedule, each of the Xxxx Corporations and Parent Affiliates: (i) is, and at all times has been, in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (ii) has withheld and reported all material amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Parent Associates; (iii) is not, to the knowledge of the Parent, liable for any material arrears of wages or any material Taxes or any material interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Parent Associates (other than routine payments to be made in the normal course of business and consistent with past practices). (j) There is no agreement, plan, arrangement or other Contract covering any Parent Associate, and no payments have been made or will be made in connection with the Merger to any Parent Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No Xxxx Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for additional Taxes payable pursuant to Section 409A of the Code. (k) Since January 1, 2009, none of the Xxxx Corporations has effectuated a “plant closing,” partial “plant closing,” “relocation”, “mass layoff” or “termination” (as defined in the WARN Act or any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the Xxxx Corporations. (l) Each Parent Employee Plan and Parent Employee Agreement that is a “nonqualified deferred compensation plan” (as defined under Code Section 409A) has been operated in compliance in all material respects with Code Section 409A and has complied in all material respects with applicable document requirements of 409A. No stock right or other equity option or appreciation right granted under any benefit plan has an exercise price that is less than the fair market value of the underlying stock or equity units (as the case may be) as of the date of such option or right was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right. Neither the terms nor the performance of any Parent Employee Agreement or Parent Employee Plan would reasonably be expected to result in gross income inclusion after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.16(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Corporations' Tetraphase Companies’ employees is terminable by the applicable Acquired Corporation Tetraphase Company at will (subject to will, without a requirement of advance notice periods not longer than sixty (60) days)or payment of severance or similar benefit. (cb) To Except as set forth in Part 2.16(b) of the Knowledge Company Disclosure Schedule, none of the Tetraphase Companies is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreementTetraphase Companies. Between December 31, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of 2018 and the date of this Agreement, none to the knowledge of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this AgreementCompany, there has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Corporations Tetraphase Companies or any of their employees. As There is not pending as of the date of this Agreement, there is not now pendingand, and to the Knowledge knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. (c) Part 2.16(c) of the Company Disclosure Schedule sets forth all Company Employee Plans with respect to which any of the Tetraphase Companies or any Company Affiliate has or may incur or become subject to any material liability or obligation (collectively, the “Material Company Plans” and each a “Material Company Plan”). (d) None of the Tetraphase Companies intends, and none of the Tetraphase Companies has committed, to establish or enter into any new Material Company Plan. Except as required by this Agreement, neither the Company, nor, to the Company’s knowledge, any other Person, intends to or has made any commitment to modify, change or terminate any Company Employee Plan, other than with respect to modifications, changes or terminations required by any Legal Requirements or that would not result in any material liability. (e) The Company has delivered or Made Available to Parent a complete and accurate copy of all documents setting forth the terms of each material Company Employee Plan and all amendments thereto. With respect to each Company Employee Plan that is subject to ERISA or intended to be qualified under Section 401(a) of the Code, the Company has delivered or Made Available to Parent: (i) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (ii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iii) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (iv) all material written Contracts relating to each Company Employee Plan, including administrative service agreements, group insurance contracts and any trust agreement; (v) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three most recent plan years; (vi) the most recent IRS determination, advisory, or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code; and (vii) all material correspondence in its possession regarding any Company Employee Plan regarding any audit, investigation or proceeding regarding such Company Employee Plan or any fiduciary thereof since December 31, 2018 through the date of this Agreement. (f) Since January 1, 2014, neither the Company nor any Company Affiliate has maintained, established, participated in or contributed to, or is or has been required to contribute to, or has otherwise incurred any obligation or liability (including any contingent liability) under a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Company Pension Plan holds the stock of any of the Tetraphase Companies or any Company Affiliate as a plan asset. No Company Employee Plan is subject to the Legal Requirements of any jurisdiction outside of the United States. (g) Each Company Employee Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has been the subject of a favorable determination letter (or, if applicable, advisory or opinion letter) from the IRS that has not been revoked (or if not determined to be so qualified, such Company Employee Plan may still be amended within the remedial amendment period to cure any qualification defect to the extent permitted by applicable Legal Requirements), and to the knowledge of the Company, no event has occurred and no condition exists that would reasonably be expected to materially adversely affect the qualified status of any such Company Employee Plan or the imposition of any material liability, penalty or tax under ERISA or the Code. None of the Tetraphase Companies have engaged in a transaction in connection with which such Tetraphase Company reasonably would be subject to either a material liability pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code that is not curable without material cost. (h) Except as has not been or would not reasonably be expected to be material to the Tetraphase Companies, taken as a whole, (A) each Company Employee Plan has been operated and administered in accordance with its provisions and in compliance with all applicable Legal Requirements, including any applicable provisions of ERISA and the Code; and (B) all payments and contributions required to be made under the terms of any Company Employee Plan have been made or the amount of such payment or contribution obligation has been reflected in the Company SEC Documents filed prior to the date of this Agreement. Since December 31, 2018, the Tetraphase Companies have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is no default or violation by any other party to, any Company Employee Plan. There are no material liabilities of the Tetraphase Companies with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company where required by GAAP. (i) Except to the extent required under Section 601et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), neither the Tetraphase Companies nor any Company Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any Company Employee pursuant to any retiree medical, retiree disability, retiree life insurance benefit plan or other retiree welfare plan. None of the Tetraphase Companies maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured other than severance. (j) None of the Tetraphase Companies has effectuated any “plant closing,” “relocation” or “mass layoff” (as defined in the Worker Adjustment and Retraining Notification Act or any similar Legal Requirement) since December 31, 2018.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company’s Knowledge, no employee of any of the Acquired Corporations Company Employee is a party to or is bound by any confidentiality agreementnon-competition agreement that limits the employee’s ability to provide services to the Company. (b) As of the Agreement Date, noncompetition except as set forth on Part 3.20(b) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other Contract with a labor organization representing any Company Employee (a “Collective Bargaining Agreement”), and there are no labor organizations representing, purporting to represent or, to the Company’s Knowledge, seeking to represent any Company Employee. (c) Except to the extent provided in the applicable subsections of Part 3.20(c) of the Company Disclosure Schedule (which such subsections correspond with the subsections in this Section 3.20(c)): (i) none of the Company Employees have been, or currently are, represented by a labor organization or group that was either certified or voluntarily recognized by any labor relations board, including, without limitation, the National Labor Relations Board or any other Governmental Body; (ii) no representation election petition or application for certification has been filed by any of the Company Employees or is pending with the National Labor Relations Board or any other Governmental Body and no union organizing campaign or other attempt to organize or establish a labor union, employee organization or labor organization or group involving Company Employees has occurred, is in progress, or, to the Company’s Knowledge, is threatened. (iii) neither the Company nor any of its Subsidiaries has entered into any Collective Bargaining Agreements in the past; (iv) neither the Company nor any of its Subsidiaries has suffered any labor dispute, any activity or proceeding by a labor union or representative thereof to organize any Company Employees or any picketing, lockouts, strikes, slowdowns, work stoppages, job actions or threats thereof by or with respect to any Company Employee; (d) Part 3.20(d) of the Disclosure Schedule contains a complete and accurate list of each written and oral: (i) Company Employee Plan; (ii) Company Employment Agreement; and (iii) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC). With respect to each Company Employee Plan other than a Company Employee Plan that is maintained in any non-U.S. jurisdiction (together, the “International Employee Plans”), to the extent applicable, the Company has made available to Parent complete and accurate copies of: (A) the most recent annual report on Form 5500 required to have been filed with the Internal Revenue Service for each Company Employee Plan, including all schedules and attachments thereto; (B) the most recent determination letter, if any, from the Internal Revenue Service for any Company Employee Plan that is intended to qualify under Section 401(a) of the Code; (C) the current and historical plan documents and summary plan descriptions, and for each Company Employee Plan that is not in writing, a written description of the terms of such Company Employee Plan; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; (E) any notices to or from the Internal Revenue Service or the Department of Labor relating to any material compliance issues in respect of any such Company Employee Plan; (F) copies of all minutes and resolutions of any fiduciary or administrative committee meetings with respect to each Company Employee Plan; and (G) with respect to each International Employee Plan, to the extent applicable, (1) the most recent annual report or similar compliance documents required to be filed with any PersonGovernmental Body with respect to such plan and (2) any document comparable to the determination letter referenced in clause (B) of this sentence above issued by a Governmental Body relating to the satisfaction of Law necessary to obtain the most favorable tax treatment. (e) Except as set forth on Part 3.20(e) of the Disclosure Schedule, no Company Employee Plan is, nor has the Company, any of its Subsidiaries or any Company Affiliates maintained or contributed to or had any liability, obligation or commitment of any kind (“Liability”) in the past six (6) years in connection with any Company Employee Plan that was: (i) a “defined benefit plan” (as defined in Section 414 of the Code or Section 3(35) of ERISA); (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA); (iii) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA); (iv) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is reasonably likely subject to have Section 302 of ERISA, Section 412 or 430 of the Code or Title IV of ERISA; or (v) a material adverse effect on the Acquired Corporations taken “multiple employer welfare arrangement” (as a wholedefined in Section 3(40) of ERISA). (df) Each Company Employee Plan and Company Employment Agreement has been established, maintained, operated and documented in all material respects in accordance with its material terms and with all applicable Law, including the applicable provisions of ERISA and the Code. (g) Except as set forth on Part 3.20(g) of the Disclosure Schedule or as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Offer or the Merger will or would reasonably be expected to (either alone or upon the occurrence of termination of employment or service) constitute an event under any Company Employee Plan or Company Employee Agreement that will or may result (either alone or in connection with any other circumstance or event) in: (i) any payment or benefit becoming due or payable, or required to be provided, including any forgiveness of indebtedness, to any current or former Company Employee or other service provider of the Company or any of its Subsidiaries; (ii) any increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former Company Employee or other service provider of the Company or any of its Subsidiaries; (iii) the acceleration of the time of payment, vesting or funding of any such benefit or compensation; or (iv) an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code or the imposition of any excise tax under Section 4999 of the Code. No Contracts or agreements provide for any gross-up payments for any current or former Company Employee of the Company or any of its Subsidiaries to cover any liability for tax under the Code, including but not limited to Sections 4999 or 409A, or similar laws, including state laws. (h) Each Company Employee Plan or Company Employment Agreement that is subject to Section 409A of the Code has been maintained in written form and operated and administered in compliance in all material respects with Section 409A of the Code. No violation of Section 409A of the Code has occurred with respect to any Company Employee Plan or Company Employment Agreement that would trigger additional taxes under Section 409A of the Code. (i) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreementhereof, there has not been any slowdownare no Legal Proceedings pending or, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and to the Knowledge of the Company, threatened on behalf of or against any Company Employee Plan, the assets of any trust under any Company Employee Plan, or the plan sponsor, plan administrator or any fiduciary of any Company Employee Plan with respect to the administration or operation of such plans, other than routine claims for benefits payable in the ordinary course and pursuant to the terms of such plans, and no Person has threatened facts or circumstances exist that would reasonably be expected to commencegive rise to any such Legal Proceedings. (j) None of the Company, any such slowdownof its Subsidiaries, work stoppage, labor dispute or union organizing activity or any similarCompany Affiliates or, to the Knowledge of the Company, any of their respective directors, officers, employees or agents or any third party fiduciary or party in interest with respect to any Company Employee Plan has, with respect to any Company Employee Plan, engaged in or been a party to any non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA, which will or could reasonably be expected to result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code, in each case applicable to the Company, any of its Subsidiaries or any Company Affiliates or any Company Employee Plan or for which the Company or any of its Subsidiaries or any Company Affiliates has any indemnification obligation. (k) No Company Employee Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA or any Company Employee Agreement provides welfare benefits to former employees, directors, contractors or other service providers of the Company, any of its Subsidiaries or any Company Affiliates, other than pursuant to Section 4980B of the Code or any similar applicable Law and at the sole expense of such former employees, directors, contractors or other service providers. (l) Each Company Employee Plan that is intended to be “qualified” under Section 401 of the Code is so qualified and its related trust is tax-exempt, and, to the Knowledge of the Company, nothing has occurred that could reasonably be expected to cause the loss of such qualified or tax-exempt status and each such plan has timely been amended to comply with all applicable Laws. (m) To the extent applicable, each International Employee Plan (i) has been approved by the relevant taxation and other Governmental Body so as to enable: (1) the Company or any of its Subsidiaries and the participants and beneficiaries under the relevant International Employee Plan; and (2) in the case of any International Employee Plan under which resources are set aside in advance of the benefits being paid (a “Funded International Employee Plan”), the assets held for the purposes of the Funded International Employee Plans, to enjoy the most favorable taxation status possible; (ii) is in material compliance with the applicable provisions of the laws and regulations regarding employee benefits, mandatory contributions and retirement plans of each jurisdiction applicable to such International Employee Plan; and (iii) required to be registered has been registered and has been maintained in good standing with the applicable regulatory authorities. The fair market value of the assets of each Funded International Employee Plan, the liability of each insurer for any International Employee Plan funded through insurance or the book reserve established for any International Employee Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such International Employee Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, and any and all amounts required to be accrued with respect to any International Employee Plan or pursuant to any statutory requirements pertaining to employee benefits, mandatory contributions, retirement plans or similar benefits, have been properly and timely accrued, including accruals relating to any severance, termination pay or profit sharing benefits. (n) All contributions, premiums and other payments required to be made with respect to any Company Employee Plan have been timely made, accrued or reserved for. (o) Except as required by applicable Law or the terms of any Company Employee Plans as in effect on the date hereof, neither the Company nor any of its Subsidiaries has any plan or commitment to amend in any material respect or establish any new Company Employee Plan or to continue or materially increase any benefits under any Company Employee Plan. (p) Part 3.20(p) of the Disclosure Schedule contains a true and complete list of all persons who incurred an Employment Loss with the Company or any of its Subsidiaries since January 1, 2008, the date of such Employment Loss, each individual’s site of employment and the nature of such Employment Loss. (q) The Company is in compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices and terms and conditions of employment.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.16(a) of the Company Disclosure Schedule, none of the Target Companies is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and, to the knowledge of the Company, there are no labor organizations or works councils representing, purporting to represent or seeking to represent any employees of any of the Target Companies. There is no material strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question concerning representation, union organizing activity, or, to the knowledge of the Company, any threat thereof affecting any of the Target Companies or any of their employees. (b) Part 2.16(b) of the Company Disclosure Schedule accurately sets forth all Company Employee Plans (other than any employment or similar agreement that do not provide severance protections or any independent contractor or consulting agreement with any Person that is not a natural Person). (c) None of the Target Companies intends, and none of the Target Companies has committed, to establish or enter into any new Company Employee Plan. Except as required by this Agreement, neither the Company, nor, to the Company’s knowledge, any other Person, intends to or has made any commitment to materially modify, change or terminate any Company Employee Plan, other than with respect to modifications, changes or terminations required by any Legal Requirements. (d) In the past six years, neither the Company nor any Company Affiliate has maintained, established, participated in or contributed to, or is or has been required to contribute to, or has otherwise incurred any obligation or liability (including any contingent liability) under a plan subject to Title IV of ERISA or Code Section 412, including any “single employer” defined benefit plan, any “multiemployer plan,” each as defined in Section 4001 of ERISA or 3(37) of ERISA, any multiple employer plan as defined in Code Section 413(c), or multiemployer welfare arrangement as defined in Section 3(40) of ERISA. (e) Each Company Employee Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has been the subject of or is permitted to rely upon a favorable determination letter (or, if applicable, advisory or opinion letter) from the IRS that has not been revoked (or if not determined to be so qualified, such Company Employee Plan may still be amended within the remedial amendment period to cure any qualification defect to the extent permitted by applicable Legal Requirements), and to the knowledge of the Company, no event has occurred and no condition exists that would reasonably be expected to materially adversely affect the qualified status of any such Company Employee Plan or the imposition of any material liability, penalty or tax under ERISA or the Code. None of the Target Companies have engaged in a transaction in connection with which such Target Company reasonably would be subject to either material liability pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code. (f) Except as has not been or would not reasonably be expected to be material to the Target Companies, taken as a whole, (A) each Company Employee Plan has been operated and administered in accordance with its provisions and in compliance with all applicable Legal Requirements, including any applicable provisions of ERISA and the Code; and (B) all payments and contributions required to be made under the terms of any Company Employee Plan have been made or the amount of such payment or contribution obligation has been reflected in the Company SEC Documents filed prior to the date of this Agreement. Since December 31, 2020, the Target Companies have performed in all material respects all obligations required to be performed by them under, are not in any material respect in default under or in violation of, and, to the knowledge of the Company, there is no default or violation by any other party to, any Company Employee Plan. There are no material liabilities of the Target Companies with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company where required by GAAP. (g) Except for coverage required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement) or as provided under any separation, severance or similar agreement, no Company Employee Plan provides any post-employment or retirement medical, dental, life or other welfare benefits to any current or former Company Employee. (h) Except as set forth in Part 2.16(h) of the Company Disclosure Schedule, each of the Target Companies is in material compliance with all applicable Legal Requirements related to employment and employment practices (including any Order or arbitration award of any court, arbitrator or any Governmental Body), including payment of wages, hours of work, harassment, discrimination, retaliation, employee safety or health, and labor relations. (i) Except as set forth in Part 2.16(i) of the Company Disclosure Schedule or pursuant to Section 5.2, or as a result of a resignation pursuant to Section 5.7, neither the execution of this Agreement nor the consummation of the Offer or the Merger (including in combination with other events or circumstances) will (i) entitle any Company Employee to, or accelerate the time of payment or vesting or increase the amount of, any material compensation or benefits due to any such Company Employee, (ii) limit or restrict the right to merge, amend, terminate or transfer any material assets of any Company Employee Plan on or following the Effective Time or (iii) result in the payment of any amount that would reasonably be expected, individually or in combination with any other such payment, to constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. (j) Each Company Employee Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and the regulations thereunder, except for any instances of noncompliance that would not reasonably be expected to result in a material liability to the Target Companies. No Company Employee Plan provides for an obligation to gross-up, indemnify or otherwise reimburse any Company Employee for any Tax incurred by such Company Employee pursuant to Section 409A or 4999 of the Code. (k) Except for loans provided under any Company Employee Plan intended to be qualified under Section 401(a) of the Code, as of the date of this Agreement the following informationAgreement, accurate in all material respects, with respect to each employee there are no loans or extensions of each of the Acquired Corporations (including credit from any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employeeCompany Employee Plan, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect Target Companies or any Company Affiliate to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002any Company Employee. (bl) As of the date of this Agreement, there are no actions, suits, claims, charges, complaints, grievances, arbitrations, investigations or other Legal Proceedings (except routine claims for benefits) pending or, to the employment of each knowledge of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of Company threatened against any of the Acquired Corporations is a party Target Companies and Company Affiliates relating to the employment or is bound by engagement of any confidentiality agreementCompany Associate, noncompetition agreement which if determined or other Contract (resolved adversely in accordance with any Person) that is the plaintiff’s demands would reasonably likely be expected to have a be material adverse effect on to the Acquired Corporations Target Companies taken as a whole. (dm) As There have been no “prohibited transactions” (as described in section 406 of ERISA or section 4975 of the date of this Agreement, Code) with respect to any Company Employee Plan none of the Acquired Corporations is a party to Target Companies or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is Company Affiliates has engaged in any unfair labor practice of any nature. From January 1prohibited transaction, 2002 through the date of this Agreement, there has except as would not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and be material to the Knowledge of the Company, no Person has threatened to commence, any such slowdown, work stoppage, labor dispute or union organizing activity or any similarTarget Companies taken as a whole.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.18(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired API Corporations' ’ employees is terminable by the applicable Acquired API Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To Except as set forth in Part 2.18(b) of the Knowledge Company Disclosure Schedule, none of the API Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureAPI Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired API Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. There is no claim or grievance pending or, to the knowledge of the Company, threatened against any API Corporation relating to any employment Contract, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, by country and as of the date hereof, of each Company Employee Plan and each Company Employee Agreement. None of the API Corporations intends, and none of the API Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). There has been no amendment to, announcement by any API Corporation relating to, or change in employee participation or coverage under, any Company Employee Plan that would materially increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year with respect to any director, officer, employee, independent contractor or consultant, as applicable. (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto; (ii) the two most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; and (v) all material correspondence in its possession regarding any Company Employee Plan regarding any audit, investigation or proceeding regarding such Company Employee Plan or any fiduciary thereof. (e) Each of the API Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan and Company Employee Agreement, and each Company Employee Plan and Company Employee Agreement has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Company Pension Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Company Pension Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the API Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan or any fiduciary thereof. None of the API Corporations, and no Company Affiliate, has ever incurred: (i) any material penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the API Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan and each Company Employee Agreement. (f) None of the API Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the API Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the API Corporations or any Company Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations. There are no material liabilities of the API Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. Nothing has occurred that could result in a material increase in the benefits under or the expense of maintaining any Company Employee Plan from the level of benefits or expense incurred for the most recently completed fiscal year. (g) None of the API Corporations, and no Company Affiliate, maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the API Corporations or any Company Affiliate), or reflects or represents any liability of any of the API Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the API Corporations or any Company Affiliate, none of the API Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 2.18(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 2.18(i) of the Company Disclosure Schedule, each of the API Corporations and Company Affiliates: (i) is, and has been, in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (ii) has withheld and reported all material amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not, to the knowledge of the Company, liable for any material arrears of wages or any material Taxes or any material interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practices). (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No API Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for additional Taxes payable pursuant to Section 409A of the Code. The Company has made available to Parent true and complete copies of any Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection with the transactions contemplated by this Agreement. (k) Since January 1, 2012, none of the API Corporations has effectuated a “plant closing,” partial “plant closing,” “relocation”, “mass layoff” or “termination” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the API Corporations. (l) Each Company Employee Plan and Company Employee Agreement that is a “nonqualified deferred compensation plan” (as defined under Code Section 409A) has been operated in compliance in all material respects with Code Section 409A and has complied in all material respects with applicable document requirements of 409A. No stock right or other equity option or appreciation right granted under any benefit plan has an exercise price that is less than the fair market value of the underlying stock or equity units (as the case may be) as of the date of such option or right was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, neither Everest nor any of its Subsidiaries (with respect to the employment of each Newco Business) nor any of the Acquired Corporations' Newco Companies is a party to any collective bargaining agreement or other Contract with a labor organization, employee representative or works council representing any of its employees is terminable by the applicable Acquired Corporation at will (subject and there are no labor organizations, employee representatives or works councils representing, purporting to notice periods not longer than sixty (60) days). (c) To represent or, to the Knowledge of the CompanyEverest, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract Newco Business; (with any Personii) that is reasonably likely to have a material adverse effect on since the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 Applicable Date through the date of this Agreementhereof, there has not been any material strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting Everest or any of its Subsidiaries (with respect to the Newco Business) or any of the Acquired Corporations Newco Companies or any of their employees. As employees in the Newco Business; (iii) as of the date of this Agreement, there is not now are no pending, and and, to the Knowledge of the CompanyEverest, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action or picketing referred to in the preceding clause (ii); (iv) as of the date of this Agreement, no labor dispute organization, employee representative, works council, or union organizing activity group of employees of the Newco Companies has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed with the National Labor Relations Board or any similarother labor relations tribunal or authority; and (v) as of the date of this Agreement, there is no material unfair labor practice charge, or claim or grievance pending or, to the Knowledge of Everest, threatened against any Newco Company arising under any collective bargaining agreement or other Contract with a labor organization, employee representative or works council relating to any terms or conditions of employment. The execution and delivery of this Agreement and the performance of this Agreement do not require Everest or any of the Newco Companies to seek or obtain any consent, engage in consultation with, or issue any notice to or make any filing with (as applicable) any labor organization, employee representative or works council, or any Governmental Body, with respect to any employee of Everest or any of the Newco Companies. (b) Section 2.16(b) of the Everest Disclosure Letter sets forth a list of each material Everest Employee Plan (x) under which any of the Newco Companies or Athena has or may have any liability or an obligation under the terms of the Employee Matters Agreement or otherwise on or following the Effective Time, (y) the terms and conditions of which serve as the basis for the provision of benefits to the Newco Associates after the Closing Date in accordance with the terms and conditions of the Employee Matters Agreement, or (z) as to which Athena or any of the Newco Companies is obligated under applicable Legal Requirements or under the terms of the Employee Matters Agreement to assume sponsorship or liability for or otherwise maintain after the Closing Date (any such Everest Employee Plan referenced in (x), (y), or (z) the “Newco Plans”). Everest has Made Available to Athena the following items with respect to each material Newco Plan maintained primarily in respect of individuals who are located in the United States: (i) all documents setting forth the terms of each such Newco Plan, including all amendments thereto and all related trust documents and funding arrangements; (ii) the most recent summary plan description; (iii) the most recent annual reports (Form 5500s and all schedules and financial statements attached thereto), if any; (iv) the most recent annual actuarial valuation; (v) all material correspondence in its possession regarding any such Newco Plan regarding any audit, investigation or proceeding before any Governmental Body regarding such Newco Plan or any fiduciary thereof; and (vi) in the case of any Newco Plan intended to be qualified under Section 401(a) of the Code, the most recent IRS determination or opinion letter issued with respect to such Newco Plan. (c) Except as would not reasonably be expected to result in material liability to the Newco Companies or Athena, taken as a whole, (i) each of the Newco Companies and Everest Affiliates has performed in all material respects all obligations required to be performed by it under each Newco Plan and each Newco Plan has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements; (ii) as of the date of this Agreement, there are no material audits or inquiries pending or, to the Knowledge of Everest, threatened by the IRS, the DOL or any other Governmental Body with respect to any such Newco Plan (or any fiduciary thereof); (iii) as of the date of this Agreement, there are no material actions, suits or claims pending, or to the Knowledge of Everest, threatened or reasonably anticipated (other than routine claims for benefits) against any such Newco Plans, or against the assets of any such Newco Plan; (iv) full and timely payment has been made of all material amounts which Everest or any of the Newco Companies are required, under applicable Legal Requirements or in accordance with the terms of any Newco Plan, to have paid as a contribution or payment in respect of any Newco Plan, and all such contributions or payments for any period that are not yet due have been made, paid or properly accrued in accordance with GAAP applied on a consistent basis; (v) no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary duty (as determined under ERISA) has occurred with respect to any Newco Plan; and (vi) no events have occurred with respect to any Newco Plan that would result in a payment or assessment by or against Everest or any of its Subsidiaries (with respect to the Newco Business) or any of the Newco Companies of any material Taxes, liabilities or penalties (civil or otherwise). (d) Each Newco Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, to the Knowledge of Everest, nothing has occurred that would adversely affect the qualification or Tax exemption of any such Newco Plan. (e) Except as would not reasonably be expected to result in material liability to the Newco Companies or Athena, taken as a whole, (i) neither Everest, its Subsidiaries, the Newco Companies nor any Everest Affiliate, has ever maintained, established, sponsored, participated in or contributed to, or has any current or contingent liability under, any: (A) “defined benefit plan” (as defined in Section 3(35) of ERISA) or plan that is or was subject to Section 412 of the Code or Title IV of ERISA, (B) “multiemployer plan” (as defined in Section 3(37) of ERISA), (C) “multiple employer plan” (as defined in Section 210 of ERISA or Section 413(c) of the Code), or (D) “multiple employer welfare arrangement”(as defined in Section 3(40) of ERISA); (ii) no Everest Employee Plan provides (except at no cost to the Newco Companies or any Everest Affiliate), or reflects or represents any liability of any of the Newco Companies or any Everest Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Newco Associate, except as may be required by COBRA or other applicable Legal Requirements; (iii) none of Everest or any of its Subsidiaries has any liability as a result of at any time being treated as a single employer under Section 414 of the Code (other than with respect to Everest or any of its Subsidiaries, as applicable); and (iv) with respect to any Newco Plan subject to the minimum funding requirements of Section 412 of the Code or Title IV of ERISA, (A) no such plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code), (B) the Pension Benefit Guaranty Corporation (the “PBGC”) has not instituted proceedings to terminate any such Newco Plan, and (C) no “reportable event” within the meaning of Section 4043 of ERISA (excluding any such event for which the 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) has occurred, nor has any event described in Sections 4062, 4063 or 4041 of ERISA occurred. (f) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement would, either alone or in combination with another event, (i) entitle any Newco Associate to severance, change in control, retention or incentive pay or bonuses or any increase in severance, change in control, retention or incentive pay or bonuses under any Newco Plan; (ii) accelerate the time of payment or vesting, or increase the amount, of compensation or benefits due to any Newco Associate; (iii) directly or indirectly require Everest or any of its Subsidiaries to transfer or set aside any assets to fund any benefits under any Newco Plan; (iv) otherwise give rise to any material liability of Everest or any of its Subsidiaries under any Newco Plan; or (v) result in the payment of any amount that could, individually or in combination with any other such payment, be an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. None of the Newco Companies has any obligation to compensate any Person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A of the Code. (g) There are no material complaints, charges, or claims against Everest or any of the Newco Companies pending or, to the Knowledge of Everest, threatened that could be brought or filed with any Governmental Body, based on, arising out of, in connection with or otherwise relating to the employment or termination of employment or failure to employ by Everest or any of the Newco Companies of any individual. (h) Except as would not reasonably be expected to result in material liability to the Newco Companies or Athena, taken as a whole, since the Applicable Date, Everest and the Newco Companies are in compliance in all material respects with all Legal Requirements relating to terms and conditions of employment, employment practices, employment discrimination and harassment, civil rights, WARN and any similar state or local plant closures and mass layoffs Legal Requirements, wages (including minimum wage and overtime), hours of work, withholdings and deductions, classification and payment of employees, independent contractors, and consultants, employment equity, collective bargaining, occupational health and safety, workers’ compensation, immigration, and all other labor related matters with respect to the Newco Employees. There has been no “mass layoff” or “plant closing” (as defined by WARN) with respect to Everest or the Newco Companies within the six (6) months prior to Closing. (i) Except as would not reasonably be expected to result in material liability to the Newco Companies or Athena, taken as a whole, each Newco Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance in all material respects with Section 409A of the Code and has complied in all material respects with applicable documentary requirements of Section 409A of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets Except as set forth as in Part 2.14(a) of the date of this Agreement the following informationXxxxxxx Disclosure Letter or as would not reasonably be expected to result in material liability to NetScout, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations Communications Companies is a party to or bound by any union Contract or collective bargaining agreement. (e) As agreement or other Contract with a labor organization, employee representative or works council representing any of its employees and there are no labor organizations, employee representatives or works councils representing, purporting to represent or, to the Knowledge of Xxxxxxx, seeking to represent any employees of any of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From Communications Companies; (ii) since January 1, 2002 2012 through the date of this Agreementhereof, there has not been any material strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Corporations Communications Companies or any of their employees. As ; (iii) as of the date of this Agreement, there is not now are no pending, and and, to the Knowledge of the CompanyXxxxxxx, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action or picketing; and (iv) as of the date of this Agreement, there is no material claim or grievance pending or, to the Knowledge of Xxxxxxx, threatened against any Communications Company arising under any collective bargaining agreement or other Contract with a labor dispute organization, employee representative or union organizing activity works council relating to any terms or conditions of employment. (b) Within 30 days after the date hereof, Xxxxxxx will deliver or make available to NetScout (to the extent not provided as of the date hereof) accurate and complete copies of, in each case with respect solely to any material Xxxxxxx Employee Plan or material Xxxxxxx Employee Agreement (x) under which any member of the Newco Group (as defined in the Employee Matters Agreement) or NetScout has or may have any material liability or a material obligation under the terms of the Employee Matters Agreement, (y) with respect to Xxxxxxx Employee Plans, the terms and conditions of which serve as the basis for the provision of comparable or similar benefits to the Newco Employees after the Closing Date, in accordance with the terms and conditions of the Employee Matters Agreement, or (z) as to which, in accordance with the Employee Matters Agreement, NetScout is required to determine whether NetScout or any similarmember of the Newco Group is obligated under applicable Law to assume sponsorship or material liabilities for or otherwise maintain a Xxxxxxx Employee Plan after the Closing Date (any such Xxxxxxx Employee Plan referenced in (x), (y) or (z), the “Newco Plans”): (i) all documents setting forth the terms of each such Newco Plan, including all amendments thereto and all related trust documents; (ii) the most recent summary plan description; (iii) the most recent annual reports (Form 5500s and all schedules and financial statements attached thereto), if any; and (iv) all material correspondence in its possession regarding any such Newco Plan regarding any audit, investigation or proceeding before any Governmental Body regarding such Newco Plan or any fiduciary thereof; provided that, if Xxxxxxx uses commercially reasonable efforts to provide or make available any such document to NetScout, but is not able to so deliver it within 30 days after the date hereof, it will provide or make available such document to NetScout within 60 days after the date hereof. Xxxxxxx will deliver or Make Available to NetScout an updated version of the list referenced in this Section 2.14(b) to reflect any applicable changes thereto within 90 days after the date hereof and periodically thereafter prior to the Closing Date, but in no event later than 60 days after the date on which the previous update is provided. Xxxxxxx has delivered or Made Available to NetScout an accurate and complete copy of the most recent IRS determination or opinion letter issued with respect to the Xxxxxxx Employee Plan intended to be qualified under Section 401(a) of the Code in which Newco Employees participate as of the date hereof. (c) Except as set forth in Part 2.14(c) of the Xxxxxxx Disclosure Letter or as would not reasonably be expected to result in material liability to NetScout, (i) each of the Communications Companies and Xxxxxxx Affiliates has performed in all material respects all obligations required to be performed by it under each Newco Plan and each Newco Plan has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements; (ii) as of the date of this Agreement, there are no material audits or inquiries pending or, to the Knowledge of Xxxxxxx, threatened by the IRS, the DOL or any other Governmental Body with respect to any such Newco Plan (or any fiduciary thereof); (iii) as of the date of this Agreement, there are no material actions, suits or claims pending, or to the Knowledge of Xxxxxxx, threatened or reasonably anticipated (other than routine claims for benefits) against any such Newco Plans, or against the assets of any such Newco Plan; (iv) full and timely payment has been made of all material amounts which Xxxxxxx or its Affiliates or the Communications Companies are required, under applicable law or under any Newco Plan, to have paid as a contribution or payment for any Newco Associate, in respect of any Newco Plan, and all such contributions or payments for any period that are not yet due have been made, paid or properly accrued in accordance with GAAP applied on a consistent basis. (d) Any Newco Plan in which any Newco Employee is a beneficiary that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. (e) Except as set forth in Part 2.14(e) of the Xxxxxxx Disclosure Letter or as would not reasonably be expected to result in material liability to NetScout, (i) none of the Communications Companies, and no Xxxxxxx Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (A) Xxxxxxx Pension Plan subject to Title IV of ERISA; (B) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (C) plan described in Section 413 of the Code, in each case pursuant to which a Newco Employee is or was a beneficiary and (ii) no Xxxxxxx Employee Plan provides (except at no cost to the Communications Companies or any Xxxxxxx Affiliate), or reflects or represents any liability of any of the Communications Companies or any Xxxxxxx Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Newco Employee, except as may be required by COBRA or other applicable Legal Requirements. (f) Except as set forth in Part 2.14(f) of the Xxxxxxx Disclosure Letter or as would not reasonably be expected to result in material liability to NetScout, as relates to the Newco Associates, none of the Communications Companies has any obligation to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for taxes payable pursuant to Section 409A of the Code. (g) Except as set forth in Part 2.14(g) of the Xxxxxxx Disclosure Letter or as would not reasonably be expected to result in material liability to NetScout, Xxxxxxx and its Affiliates, including the Communications Companies, are in compliance in all material respects with all Legal Requirements relating to terms and conditions of employment, employment practices, wages, hours, and other labor related matters with respect to the Newco Employees.

Employee and Labor Matters; Benefit Plans. (ak) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each None of the Acquired Corporations (including Companies is or has been a party to, subject to, or under any employee of obligation to bargain for, any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Collective Bargaining Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject and there are no labor organizations representing, purporting to notice periods not longer than sixty (60) days). (c) To represent or, to the Knowledge of the Company, no seeking to represent any employee or Contract Worker of any of the Acquired Corporations is a party to or is bound by any confidentiality agreementCompanies. There are no organizing, noncompetition agreement election, certification petitions, campaigns, or other Contract (with any Person) that is reasonably likely activities pending or, to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As Knowledge of the date Company, threatened by or on behalf of this Agreementany Union with respect to any Company Associate. No Union holds bargaining rights with respect to any Company Associate by way of certification, none interim certification, voluntary recognition or succession rights, or has applied or, to the Knowledge of the Acquired Corporations is a party Company, threatened to or bound by any union Contract or collective apply to be certified as the bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice agent of any natureCompany Associate. From January 1No Acquired Company has agreed to recognize any Union, 2002 through nor has any Union been certified as the date exclusive bargaining representative of this Agreement, there any Company Associate. No Acquired Company is or has not been any the subject of a slowdown, strike, picketing, boycott, group work stoppage, labor dispute dispute, attempt to organize or union Union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations Companies or any of their employees. As . (l) Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, each Company Associate that currently renders or has rendered services to any of the date Acquired Companies that is classified as a Contract Worker or other non-employee status or as an exempt or non-exempt employee, is properly characterized as such for all purposes, including: (i) for purposes of this Agreementthe Fair Labor Standards Act and similar applicable state, there is not now pendinglocal, provincial and foreign Applicable Laws governing the payment of wages (including overtime and premium wages); (ii) Tax Applicable Laws; and (iii) unemployment insurance and worker’s compensation obligations, and the Acquired Companies have properly classified and treated each such individual in accordance with Applicable Laws and for purposes of all applicable Company Employee Plans and perquisites. No Contract Worker is eligible to participate in any Company Employee Plan. (m) Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Person has threatened claimed or has reason to commenceclaim that any Company Associate or other individual affiliated or associated with any Acquired Company: (i) is in violation of any term of any employment Contract, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement, any other restrictive covenant with such slowdownPerson; (ii) has disclosed or utilized any trade secret or proprietary information or documentation of such Person; or (iii) has interfered in the employment relationship between such Person and any of its present or former employees. Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Company Associate has used or proposed to use any trade secret, information or documentation confidential or proprietary to any former employer or other Person for whom such individual performed services or violated any confidential relationship with any Person in connection with the development, marketing or sale US-LEGAL-11446530/6 174293-0017 3089529.v7 of any product or proposed product, or the development or sale of any service or proposed service, of any Acquired Company. (n) Each Acquired Company is, and since January 1, 2020 has been, in compliance in all material respects with all Applicable Laws respecting labor and employment, including hiring practices, employment practices, terms and conditions of employment, wages, hours or other labor-related matters, including Applicable Laws relating to discrimination, equal pay, wages and hours, overtime, business expense reimbursements, labor relations, leaves of absence, paid sick leave laws, work stoppagebreaks, classification of employees (including exempt and independent contractor status), occupational health and safety, immigration, privacy, fair credit reporting, harassment, retaliation, disability rights and benefits, reasonable accommodation, equal employment, fair employment practices, immigration, wrongful discharge or violation of personal rights including the Worker Adjustment and Retraining Notification Act (and any similar foreign, provincial, state or local statute or regulation) (the “WARN Act”). Since January 1, 2021, none of the Acquired Companies has effectuated a “plant closing” or “mass layoff” as those terms are used in the WARN Act and similar laws or has become subject to any obligation under any Applicable Law or otherwise to notify or consult with, prior to or after the Effective Time, any Governmental Authority or other Person with respect to the impact of the Contemplated Transactions. Each of the Acquired Companies has properly accrued in the ordinary course of business and in accordance with GAAP, and has timely made all payments for, all wages, overtime, salaries, commissions, bonuses, fees and other compensation, together with any related Taxes and any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, worker’s compensation, social security or other benefits or obligations (other than routine payments to be made in the ordinary course of business), for any services performed, directly or indirectly, for any Acquired Company. (o) The Acquired Companies are, and since April 1, 2020 have been in compliance in all material respects with Applicable Laws regarding COVID-19 health and safety protocols. The Acquired Companies have also used commercially reasonable efforts to adhere to applicable guidance from applicable Governmental Authorities such as the U.S. Centers for Disease Control and Prevention and the federal Occupational Safety and Health Administration relating to COVID-19. (p) Neither any Acquired Company nor any of its directors or officers, nor any management level employees, is under administrative, civil or criminal (i) indictment or audit or (ii) to the Knowledge of the Company, investigation, in each case by any Governmental Authority relating to labor dispute or union organizing activity employment matters at an Acquired Company that reasonably would be expected to result in a notice of material violation, material finding of reasonable cause, or similar material adverse finding. (q) Part 2.17(g) of the Company Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of each material Company Employee Plan and each material Company Employee Agreement. None of the Acquired Companies intends, and none of the Acquired Companies has committed, to establish or enter into any new arrangement that would constitute a Company Employee Plan or Company Employee Agreement, or to materially modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any Applicable Laws, in each case as previously disclosed to Parent in writing or as required by this Agreement). The Company has Made Available to Parent, in each case, to the extent applicable: (i) accurate and complete copies of all documents setting forth the terms of each material Company Employee Plan and each material Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the most recent summary plan description, together with summaries of the material modifications thereto, if any, required US-LEGAL-11446530/6 174293-0017 3089529.v7 under ERISA with respect to each material Company Employee Plan; (iii) all trust agreements, insurance contracts and funding agreements, including all amendments thereto; (iv) all discrimination and compliance tests required under the Code for the most recent plan year; (v) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code; and (vi) all material, non-routine filings, notices, correspondence or other communications relating to any Company Employee Plan that was submitted to or received from the IRS, the Pension Benefit Guaranty Corporation, the DOL, the SEC, or any similarother Governmental Authority since January 1, 2020. (r) Each Company Employee Plan has been established, maintained and operated in all material respects in accordance with its terms and in compliance in all material respects with all Applicable Laws, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code and each trust intended to be qualified under Section 501(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, to the Knowledge of the Company, nothing has occurred since the date of the most recent determination that would reasonably be expected to adversely affect such qualification. Each other Company Employee Plan intended to be tax qualified under Applicable Laws is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material Liability to Parent, the Acquired Companies or any Company ERISA Affiliates or Parent ERISA Affiliates (other than ordinary administration expenses). There is no audit, inquiry or Legal Proceeding pending or, to the Knowledge of the Company, threatened or reasonably anticipated by the IRS, DOL, PBGC or any other Person with respect to any Company Employee Plan. None of the Acquired Companies or any Company ERISA Affiliate has ever incurred any material penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980H of the Code or any material penalty or Tax under Applicable Laws. Each of the Acquired Companies and Company ERISA Affiliates have timely made all contributions and other payments required by and due under the terms of each Company Employee Plan, except as would not result in material Liability and, to the extent not yet due, such contributions and other payments have been adequately accrued in accordance with GAAP in the consolidated financial statements (including any related notes) contained or incorporated by reference in the Company SEC Reports. None of the Acquired Companies or any Company ERISA Affiliate sponsors, maintains, participates in, or contributes to, or has an obligation to contribute to or has any Liability with respect to any Foreign Plan. (s) None of the Acquired Companies, and no Company ERISA Affiliate, has ever maintained, established, sponsored, participated in, or contributed to, or been obligated to contribute to or has any Liability in respect of, any: (i) “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA or Section 412 of the Code; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; or (iv) a “voluntary employee’s beneficiary association” within the meaning of Section 501(c)(9) of the Code. No material Liability under Title IV or Section 302 of ERISA (other than any Liability for premiums due to the PBGC (which premiums have been paid when due)) has been incurred by the Acquired Companies or any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Acquired Companies or any Company ERISA Affiliate of incurring any such Liability. No Company Employee Plan subject to ERISA holds stock issued by the Company or any of its current Company ERISA Affiliates as a plan asset. US-LEGAL-11446530/6 174293-0017 3089529.v7 (t) No Company Employee Plan or Company Employee Agreement provides (except at no cost to the Acquired Companies or any Affiliate of any Acquired Company), or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other Applicable Laws at the recipient’s sole premium expense. No Company Employee Plan provides or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, life insurance, health benefits or other welfare benefits to any member of the Company’s Board of Directors for any reason, unless such director is also an employee of an Acquired Company. (u) Except as set forth in Part 2.17(k)-1 of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will (either alone or in combination with another event, whether contingent or otherwise): (i) result in any payment (whether of bonus, change in control, retention, severance pay or otherwise), acceleration, forgiveness of Indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate; or (ii) create any limitation or restriction on the right of any Acquired Company to merge, amend or terminate any Company Employee Plan or Company Employee Agreement. Without limiting the generality of the foregoing, except as set forth on Part 2.17(k)-2 of the Company Disclosure Schedule, no amount payable to any Company Associate as a result of the execution and delivery of this Agreement or the consummation of any of the Contemplated Transactions (either alone or in combination with any other event) would be an “excess parachute payment” within the meaning of Section 280G or would be nondeductible under Section 280G of the Code. None of the Acquired Companies has any obligation to compensate any Company Associate for any Taxes incurred by such Company Associate under Section 4999 of the Code. (v) Each Company Employee Plan, Company Employee Agreement or other Contract between any Acquired Company and any Company Associate that is subject to U.S. law has been maintained and operated in documentary and operational compliance with Section 409A of the Code or an available exemption therefrom. None of the Acquired Companies is a party to or has any Liability under any Employee Plan, Company Employee Agreement or other Contract to compensate any person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A or 457A of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each None of the Acquired Corporations (including Companies is or has been a party to, subject to, or under any employee of obligation to bargain for, any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Collective Bargaining Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject and there are no labor organizations representing, purporting to notice periods not longer than sixty (60) days). (c) To represent or, to the Knowledge of the Company, no seeking to represent any employee or Contract Worker of any of the Acquired Corporations is a party to or is bound by any confidentiality agreementCompanies. There are no organizing, noncompetition agreement election, certification petitions, campaigns, or other Contract (with any Person) that is reasonably likely activities pending or, to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As Knowledge of the date Company, threatened by or on behalf of this Agreementany Union with respect to any Company Associate. No Union holds bargaining rights with respect to any Company Associate by way of certification, none interim certification, voluntary recognition or succession rights, or has applied or, to the Knowledge of the Acquired Corporations is a party Company, threatened to or bound by any union Contract or collective apply to be certified as the bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice agent of any natureCompany Associate. From January 1No Acquired Company has agreed to recognize any Union, 2002 through nor has any Union been certified as the date exclusive bargaining representative of this Agreement, there any Company Associate. No Acquired Company is or has not been any the subject of a slowdown, strike, picketing, boycott, group work stoppage, labor dispute dispute, attempt to organize or union Union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations Companies or any of their employees. As . (b) Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, each Company Associate that currently renders or has rendered services to any of the date Acquired Companies that is classified as a Contract Worker or other non-employee status or as an exempt or non-exempt employee, is properly characterized as such for all purposes, including: (i) for purposes of this Agreementthe Fair Labor Standards Act and similar applicable state, there is not now pendinglocal, provincial and foreign Applicable Laws governing the payment of wages (including overtime and premium wages); (ii) Tax Applicable Laws; and (iii) unemployment insurance and worker’s compensation obligations, and the Acquired Companies have properly classified and treated each such individual in accordance with Applicable Laws and for purposes of all applicable Company Employee Plans and perquisites. No Contract Worker is eligible to participate in any Company Employee Plan. (c) Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Person has threatened claimed or has reason to commenceclaim that any Company Associate or other individual affiliated or associated with any Acquired Company: (i) is in violation of any term of any employment Contract, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement, any other restrictive covenant with such slowdownPerson; (ii) has disclosed or utilized any trade secret or proprietary information or documentation of such Person; or (iii) has interfered in the employment relationship between such Person and any of its present or former employees. Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Company Associate has used or proposed to use any trade secret, information or documentation confidential or proprietary to any former employer or other Person for whom such individual performed services or violated any confidential relationship with any Person in connection with the development, marketing or sale of any product or proposed product, or the development or sale of any service or proposed service, of any Acquired Company. (d) Each Acquired Company is, and since January 1, 2020 has been, in compliance in all material respects with all Applicable Laws respecting labor and employment, including hiring practices, employment practices, terms and conditions of employment, wages, hours or other labor-related matters, including Applicable Laws relating to discrimination, equal pay, wages and hours, overtime, business expense reimbursements, labor relations, leaves of absence, paid sick leave laws, work stoppagebreaks, classification of employees (including exempt and independent contractor status), occupational health and safety, immigration, privacy, fair credit reporting, harassment, retaliation, disability rights and benefits, reasonable accommodation, equal employment, fair employment practices, immigration, wrongful discharge or violation of personal rights including the Worker Adjustment and Retraining Notification Act (and any similar foreign, provincial, state or local statute or regulation) (the “WARN Act”). Since January 1, 2021, none of the Acquired Companies has effectuated a “plant closing” or “mass layoff” as those terms are used in the WARN Act and similar laws or has become subject to any obligation under any Applicable Law or otherwise to notify or consult with, prior to or after the Effective Time, any Governmental Authority or other Person with respect to the impact of the Contemplated Transactions. Each of the Acquired Companies has properly accrued in the ordinary course of business and in accordance with GAAP, and has timely made all payments for, all wages, overtime, salaries, commissions, bonuses, fees and other compensation, together with any related Taxes and any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, worker’s compensation, social security or other benefits or obligations (other than routine payments to be made in the ordinary course of business), for any services performed, directly or indirectly, for any Acquired Company. (e) The Acquired Companies are, and since April 1, 2020 have been in compliance in all material respects with Applicable Laws regarding COVID-19 health and safety protocols. The Acquired Companies have also used commercially reasonable efforts to adhere to applicable guidance from applicable Governmental Authorities such as the U.S. Centers for Disease Control and Prevention and the federal Occupational Safety and Health Administration relating to COVID-19. (f) Neither any Acquired Company nor any of its directors or officers, nor any management level employees, is under administrative, civil or criminal (i) indictment or audit or (ii) to the Knowledge of the Company, investigation, in each case by any Governmental Authority relating to labor dispute or union organizing activity employment matters at an Acquired Company that reasonably would be expected to result in a notice of material violation, material finding of reasonable cause, or similar material adverse finding. (g) Part 2.17(g) of the Company Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of each material Company Employee Plan and each material Company Employee Agreement. None of the Acquired Companies intends, and none of the Acquired Companies has committed, to establish or enter into any new arrangement that would constitute a Company Employee Plan or Company Employee Agreement, or to materially modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any Applicable Laws, in each case as previously disclosed to Parent in writing or as required by this Agreement). The Company has Made Available to Parent, in each case, to the extent applicable: (i) accurate and complete copies of all documents setting forth the terms of each material Company Employee Plan and each material Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the most recent summary plan description, together with summaries of the material modifications thereto, if any, required under ERISA with respect to each material Company Employee Plan; (iii) all trust agreements, insurance contracts and funding agreements, including all amendments thereto; (iv) all discrimination and compliance tests required under the Code for the most recent plan year; (v) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code; and (vi) all material, non-routine filings, notices, correspondence or other communications relating to any Company Employee Plan that was submitted to or received from the IRS, the Pension Benefit Guaranty Corporation, the DOL, the SEC, or any similarother Governmental Authority since January 1, 2020. (h) Each Company Employee Plan has been established, maintained and operated in all material respects in accordance with its terms and in compliance in all material respects with all Applicable Laws, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code and each trust intended to be qualified under Section 501(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, to the Knowledge of the Company, nothing has occurred since the date of the most recent determination that would reasonably be expected to adversely affect such qualification. Each other Company Employee Plan intended to be tax qualified under Applicable Laws is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material Liability to Parent, the Acquired Companies or any Company ERISA Affiliates or Parent ERISA Affiliates (other than ordinary administration expenses). There is no audit, inquiry or Legal Proceeding pending or, to the Knowledge of the Company, threatened or reasonably anticipated by the IRS, DOL, PBGC or any other Person with respect to any Company Employee Plan. None of the Acquired Companies or any Company ERISA Affiliate has ever incurred any material penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980H of the Code or any material penalty or Tax under Applicable Laws. Each of the Acquired Companies and Company ERISA Affiliates have timely made all contributions and other payments required by and due under the terms of each Company Employee Plan, except as would not result in material Liability and, to the extent not yet due, such contributions and other payments have been adequately accrued in accordance with GAAP in the consolidated financial statements (including any related notes) contained or incorporated by reference in the Company SEC Reports. None of the Acquired Companies or any Company ERISA Affiliate sponsors, maintains, participates in, or contributes to, or has an obligation to contribute to or has any Liability with respect to any Foreign Plan. (i) None of the Acquired Companies, and no Company ERISA Affiliate, has ever maintained, established, sponsored, participated in, or contributed to, or been obligated to contribute to or has any Liability in respect of, any: (i) “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA or Section 412 of the Code; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; or (iv) a “voluntary employee’s beneficiary association” within the meaning of Section 501(c)(9) of the Code. No material Liability under Title IV or Section 302 of ERISA (other than any Liability for premiums due to the PBGC (which premiums have been paid when due)) has been incurred by the Acquired Companies or any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Acquired Companies or any Company ERISA Affiliate of incurring any such Liability. No Company Employee Plan subject to ERISA holds stock issued by the Company or any of its current Company ERISA Affiliates as a plan asset. (j) No Company Employee Plan or Company Employee Agreement provides (except at no cost to the Acquired Companies or any Affiliate of any Acquired Company), or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other Applicable Laws at the recipient’s sole premium expense. No Company Employee Plan provides or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, life insurance, health benefits or other welfare benefits to any member of the Company’s Board of Directors for any reason, unless such director is also an employee of an Acquired Company. (k) Except as set forth in Part 2.17(k)-1 of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will (either alone or in combination with another event, whether contingent or otherwise): (i) result in any payment (whether of bonus, change in control, retention, severance pay or otherwise), acceleration, forgiveness of Indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate; or (ii) create any limitation or restriction on the right of any Acquired Company to merge, amend or terminate any Company Employee Plan or Company Employee Agreement. Without limiting the generality of the foregoing, except as set forth on Part 2.17(k)-2 of the Company Disclosure Schedule, no amount payable to any Company Associate as a result of the execution and delivery of this Agreement or the consummation of any of the Contemplated Transactions (either alone or in combination with any other event) would be an “excess parachute payment” within the meaning of Section 280G or would be nondeductible under Section 280G of the Code. None of the Acquired Companies has any obligation to compensate any Company Associate for any Taxes incurred by such Company Associate under Section 4999 of the Code. (l) Each Company Employee Plan, Company Employee Agreement or other Contract between any Acquired Company and any Company Associate that is subject to U.S. law has been maintained and operated in documentary and operational compliance with Section 409A of the Code or an available exemption therefrom. None of the Acquired Companies is a party to or has any Liability under any Employee Plan, Company Employee Agreement or other Contract to compensate any person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A or 457A of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth has made available to Parent or Parent’s legal or financial advisor copies of all material employee manuals, handbooks and policy statements in effect as of the date of this Agreement and relating to the following information, accurate in all material respects, with respect to each employee of each employment of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002Company Employees. (b) Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) as of the date of this Agreement, neither the Company nor any Company Subsidiary is delinquent in any material payments to any of its employees for any wages, salaries, commissions, bonuses or other direct cash compensation for any services performed for the Company or such Company Subsidiary and (ii) as of the date of this Agreement, there are no material employee grievances, complaints or charges pending against the Company or any Company Subsidiary under any employee dispute resolution procedure. (c) As of the date of this Agreement, the employment of each Agreement and except as set forth in Section 3.19(c) of the Acquired Corporations' employees is terminable by Disclosure Schedule: (i) neither the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of Company nor any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations Company Subsidiary is a party to or bound by any union Contract or collective bargaining agreement. , work rules or other agreement with any labor union, labor organization, employee association, or works council (eeach, a “Union”) As applicable to employees of the date of this AgreementCompany or any Company Subsidiary (“Company Employees”), (ii) none of the Acquired Corporations Company Employees is engaged in represented by a Union with respect to his or her employment with the Company or any unfair labor practice Company Subsidiary, (iii) to the Company’s Knowledge, within the past three years, no Union has attempted to organize employees at the Company or any Company Subsidiary or filed a petition with the National Labor Relations Board seeking to be certified as the bargaining representative of any nature. From January 1Company Employees, 2002 through (iv) within the date of this Agreementpast three years, there has not have been no actual or, to the Company’s Knowledge, threatened (A) work stoppages, lock-outs or strikes, (B) slowdowns, boycotts, handbilling, picketing, walkouts, demonstrations, leafleting, sit-ins or sick-outs by Company Employees, causing significant disruption to the operations of a facility of the Company or any slowdown, work stoppage, labor dispute or union organizing activityCompany Subsidiary, or any similar activity or dispute, affecting any (C) other form of Union disruption at the Acquired Corporations Company or any of their employees. As of Company Subsidiary, and (v) except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Company Material Adverse Effect, there is not now pendingno unfair labor practice, and labor dispute, or other arbitration proceeding pending or, to the Knowledge of the Company, threatened with respect to Company Employees. (d) Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the Company and the Company Subsidiaries are, and within the past three years have been, in compliance with all applicable state, federal, and local laws respecting labor and employment, including all laws relating to discrimination, disability, labor relations, unfair labor practices, hours of work, payment of wages, employee benefits, retirement benefits, compensation, immigration, workers’ compensation, working conditions, occupational safety and health, family and medical leave, reductions in force, plant closings, notifications of employees, and employee termination and (ii) neither the Company nor any Company Subsidiary has any liabilities under the Worker Adjustment and Retraining Notification Act (“WARN”) or any state or local laws requiring notice with respect to such layoffs or terminations. sd-625790 (e) In the past three years and except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) no Person governmental entity has threatened (to commencethe Knowledge of the Company) or initiated any material complaints, charges, lawsuits, grievances, claims, arbitrations, administrative proceedings, or other proceeding(s) or investigation(s) with respect to the Company or any Company Subsidiary arising out of, in connection with, or otherwise relating to any Company Employees or any laws governing labor or employment, and (ii) no governmental entity has issued or, to the Company’s Knowledge, threatened to issue any significant citation, order, judgment, fine or decree against the Company or any Company Subsidiary with respect to any Company Employees or any laws governing labor or employment. (f) All material employee benefit plans maintained by the Company or any Company Subsidiary for their employees as of the date of this Agreement are listed in Section 3.19(f) of the Disclosure Schedule (the “Benefit Plans”). Copies of all Benefit Plans, or if no plan document is available, a written description of each Benefit Plan, and with respect to each Benefit Plan the three most recent annual reports on Form 5500 filed with the IRS (if any such slowdownreport was required), work stoppagethe most recent summary plan description, labor dispute if required, and each trust agreement and group annuity contract relating to any such Benefit Plan, have been made available to Parent or union organizing activity Parent’s legal or financial advisor. Except as set forth in Section 3.19(f) of the Disclosure Schedule and except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) No Benefit Plan, no trustee or administrator thereof, and no other fiduciary with respect thereto has engaged in any material breach of fiduciary responsibility or any similarmaterial “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which would reasonably be expected to subject any such Benefit Plan or trustee or administrator thereof to a material Tax or penalty on prohibited transactions imposed by Section 4975 of the Code; (ii) neither the Company nor any ERISA Affiliate sponsors or has within the last six years sponsored a Benefit Plan that has been subject to the minimum funding requirements of Section 412 of the Code or Title IV of ERISA. “ERISA Affiliate” means any person as defined in Section 3(9) of ERISA that is or has been a member of any group of persons described in Section 414(b), (c), (m) or (o) of the Code with the Company within the last six years;

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth has made available to Parent or Parent’s legal or financial advisor copies of all material employee manuals, handbooks and policy statements in effect as of the date of this Agreement and relating to the following information, accurate in all material respects, with respect to each employee of each employment of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002Company Employees. (b) Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) as of the date of this Agreement, neither the Company nor any Company Subsidiary is delinquent in any material payments to any of its employees for any wages, salaries, commissions, bonuses or other direct sd-625790 Exhibit B - Agreement and Plan of Merger Page 25 of 85 cash compensation for any services performed for the Company or such Company Subsidiary and (ii) as of the date of this Agreement, there are no material employee grievances, complaints or charges pending against the Company or any Company Subsidiary under any employee dispute resolution procedure. (c) As of the date of this Agreement, the employment of each Agreement and except as set forth in Section 3.19(c) of the Acquired Corporations' employees is terminable by Disclosure Schedule: (i) neither the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of Company nor any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations Company Subsidiary is a party to or bound by any union Contract or collective bargaining agreement. , work rules or other agreement with any labor union, labor organization, employee association, or works council (eeach, a “Union”) As applicable to employees of the date of this AgreementCompany or any Company Subsidiary (“Company Employees”), (ii) none of the Acquired Corporations Company Employees is engaged in represented by a Union with respect to his or her employment with the Company or any unfair labor practice Company Subsidiary, (iii) to the Company’s Knowledge, within the past three years, no Union has attempted to organize employees at the Company or any Company Subsidiary or filed a petition with the National Labor Relations Board seeking to be certified as the bargaining representative of any nature. From January 1Company Employees, 2002 through (iv) within the date of this Agreementpast three years, there has not have been no actual or, to the Company’s Knowledge, threatened (A) work stoppages, lock-outs or strikes, (B) slowdowns, boycotts, handbilling, picketing, walkouts, demonstrations, leafleting, sit-ins or sick-outs by Company Employees, causing significant disruption to the operations of a facility of the Company or any slowdown, work stoppage, labor dispute or union organizing activityCompany Subsidiary, or any similar activity or dispute, affecting any (C) other form of Union disruption at the Acquired Corporations Company or any of their employees. As of Company Subsidiary, and (v) except as would not reasonably be expected to have, individually or in the date of this Agreementaggregate, a Company Material Adverse Effect, there is not now pendingno unfair labor practice, and labor dispute, or other arbitration proceeding pending or, to the Knowledge of the Company, no Person has threatened with respect to commenceCompany Employees. (d) Except for such matters that would not reasonably be expected to have, any such slowdownindividually or in the aggregate, work stoppagea Company Material Adverse Effect: (i) the Company and the Company Subsidiaries are, and within the past three years have been, in compliance with all applicable state, federal, and local laws respecting labor and employment, including all laws relating to discrimination, disability, labor dispute or union organizing activity or any similarrelations, unfair labor practices, hours of work, payment of wages, employee benefits, retirement benefits, compensation, immigration, workers’ compensation, working conditions, occupational safety and health, family and medical leave, reductions in force, plant closings, notifications of employees, and employee termination and

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none None of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute agreement or union organizing activitycontract, or any similar activity or dispute, affecting and no collective bargaining agreement is being negotiated by any of the Acquired Corporations and (ii) no Covered Employees are represented by any works council or other form of collective employee representation with respect to employment with any Acquired Corporations. To the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any employees. There is no walkout, strike, union activity, picketing, work stoppage or work slowdown or any of their employees. As other similar occurrence pending against any of the date of this AgreementAcquired Corporations or, there is not now pending, and to the Knowledge of the Company, threatened in writing. Each of the Acquired Corporations is, and has since January 1, 2009 been, in compliance, in all material respects, with all applicable laws respecting employment and employment practices, terms and conditions of employment, wages, hours of work and occupational safety and health. There are no Person material actions, suits, claims, labor disputes or grievances pending or, to the Knowledge of the Company, threatened in writing relating to any labor, safety or discrimination matters involving any Company Associate, including charges of unfair labor practices or discrimination complaints. There is no obligation to inform, consult or obtain consent whether in advance or otherwise of any labor union, works council, employee representatives or other representative bodies in order to consummate the Merger or any of the other Contemplated Transactions. (b) Part 3.18(b) of the Company Disclosure Schedule contains a true, correct and complete list of each material Company Plan maintained in the United States (collectively, the “U.S. Plans”). (c) The Company has Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each U.S. Plan, including all amendments thereto and all related trust documents; (ii) the most recent IRS determination or opinion letter issued with respect to each U.S. Plan intended to be qualified under Section 401(a) of the Code; and (iii) with respect to each material Foreign Plan, to the extent applicable, (A) the most recent annual report or similar compliance documents required to be filed with any Governmental Body with respect to such plan and (B) any document comparable to the determination letter referenced under clause (iii) above issued by a Governmental Body relating to the satisfaction of applicable law necessary to obtain the most favorable tax treatment. (d) Except for such matters that would not reasonably be expected to result, individually or in the aggregate, in any material liability to the Acquired Corporations taken as a whole, (i) each of the Acquired Corporations and Company Affiliates has performed all obligations required to be performed by it under each U.S. Plan and each U.S. Plan has been established, maintained and funded in accordance with its terms and in compliance in all material respects with all applicable Legal Requirements, and (ii) with respect to each applicable U.S. Plan, (A) no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred; and (B) there are no actions, suits, claims audits, inquiries, or proceedings pending, or, to the Knowledge of the Company, threatened to commenceor anticipated (other than routine claims for benefits) against any, or with respect to, such Company Plan or fiduciary thereto or against the assets of any such slowdownCompany Plan. (e) No U.S. Plan is a (i) “multiemployer plan” within the meaning of Section (3)(37) of ERISA, work stoppage(ii) plan subject to Section 413 of the Code, labor dispute (iii) “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA) or union organizing activity (iv) “funded welfare plan” within the meaning of Section 419 of the Code. (f) Part 3.18(f) of the Company Disclosure Schedule contains a true, correct and complete list of each U.S. Plan that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA (a “Pension Plan”) which is subject to Title IV of ERISA or Section 412 of the Code. Except for such matters that would not reasonably be expected to result, individually or in the aggregate, in any material liability to the Acquired Corporations taken as a whole, as of the Effective Time: (i) no legal or administrative action has been taken by the PBGC to terminate or to appoint a trustee to administer the Pension Plan; (ii) no liability to the PBGC under Title IV of ERISA has been incurred by the Company or a Company Affiliate that has not been satisfied in full; (iii) each Pension Plan has been maintained in compliance with the minimum funding standards of ERISA and the Code where applicable and has not incurred any “accumulated funding deficiency,” as defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived; and (iv) no Pension Plan has incurred any event described in Section 4041 (other than the standard termination contemplated therein), 4062 or 4063 of ERISA. (g) No Company Plan provides (except at no cost to the Acquired Corporations or any similarCompany Affiliate), or reflects or represents any liability of any of the Acquired Corporations and Company Affiliates to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Legal Requirements. (h) Except as set forth in Part 3.18(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution and delivery of this Agreement, nor the consummation of the Merger or any of the other Contemplated Transactions will (either alone or upon the occurrence of a termination of employment) constitute an event under any Company Plan that may result (either alone or in connection with any other circumstance or event) in or give rise directly or indirectly to: (i) any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate; (ii) any “parachute payment” within the meaning of Section 280G(b)(2) of the Code or (iii) the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). None of the Acquired Corporations is a party to any agreement to compensate any Person for excise taxes payable pursuant to Section 409A or Section 4999 of the Code. (i) Except for such matters that would not reasonably be expected to result, individually or in the aggregate, in material liability to the Acquired Companies taken as a whole, (i) each Company Plan, that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code), subject to Section 409A, is in compliance with Section 409A and (ii) no event has occurred that would be treated by Section 409A(b) as a transfer of property for purposes of Section 83 of the Code. (j) Except for such matters that would not reasonably be expected to result, individually or in the aggregate, in any material liability to the Acquired Corporations taken as a whole, with respect to each material Foreign Plan: (i) all employer and employee contributions required by law or by the terms of such Foreign Plan have been made, or, if applicable, accrued in accordance with normal accounting practices, and a pro rata contribution for the period prior to and including the date of this Agreement has been made or accrued; (ii) the fair market value of the assets of each such Funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the benefits determined on an ongoing basis accrued to the date of this Agreement with respect to all current and former participants under such Foreign Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Plan, and neither the Merger nor any of the other Contemplated Transactions will cause such assets or insurance obligations to be less than such benefit obligations; (iii) each such Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and is approved by any applicable taxation authorities to the extent such approval is available; and (iv) to the extent applicable, each such Foreign Plan has been approved by the relevant taxation and other Governmental Bodies so as to enable: (A) the Company or any of its Company Affiliates and the participants and beneficiaries under the relevant Foreign Plan and (B) in the case of any such Foreign Plan under which resources are set aside in advance of the benefits being paid (a “Funded Foreign Plan”), the assets held for the purposes of the Funded Foreign Plans, to enjoy the most favorable taxation status possible and the Company is not aware of any ground on which such approval may cease to apply.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth has delivered or made available to Parent or Parent’s legal or financial advisor copies of all employee manuals and handbooks, policy statements and other materials in effect as of the date of this Agreement relating to the following information, accurate in all material respects, with respect to each employee of each employment of the Acquired Corporations (including any employee of any current employees of the Acquired Corporations who is on a leave Company or the engagement of absence or on layoff status): (i) the name current independent contractors of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002Company. (b) As The Company is not delinquent in any payments to any of its employees or independent contractors for any wages, salaries, commissions, bonuses or other direct compensation for any services performed for the Company. Except as set forth in Part 2.14(b) of the date Disclosure Schedule, the execution of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the actions set forth in Section 4.6 of this Agreement) do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, whether or not legally enforceable, which (either alone or upon the occurrence of any additional or subsequent event) will or may result in any acceleration of, vesting of or increase in payments or benefits to any employee or former employee or director of, or other present or former provider of services to, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of Company or any of the Acquired Corporations Subsidiaries. Except as set forth in Part 2.14(b) of the Disclosure Schedule, no Employee Benefit Plan provides for the payment of severance, termination, change-in-control or any similar type of payments or benefits. Neither the Company nor any of its Affiliates is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations would require it or any of their employeesits Affiliates to make any payment on account of the execution of this Agreement and the consummation of the transactions contemplated hereby that would constitute a “parachute payment” for purposes of Sections 280G and 4999 of the Code (“Parachute Payment Agreements”). As of the date of this Agreement, there is not now pendingare no grievances, and complaints or charges pending or, to the Knowledge of the Company, threatened against the Company under any dispute resolution procedure or before any Government Entity. The Company is not a party, or otherwise subject to any collective bargaining agreement or other labor union contract nor does the Company know of any activities or proceedings of any labor union to organize the employees of the Company as of the date of this Agreement. (c) All “employee benefit plans” within the meaning of Section 3(3) of ERISA, and any plan, program or arrangement that provides for deferred or incentive compensation, bonuses, severance, profit sharing, stock or stock-related awards, fringe benefits, short-term disability, employment, or other employees benefits of any kind, including Employment Agreements, in each case, currently maintained or sponsored by the Company for its employees are listed in Part 2.14(c) of the Disclosure Schedule (each, an “Employee Benefit Plan”). For the avoidance of doubt, the provision of Social Security benefits to Company employees is not an Employee Benefit Plan for the purposes of this Agreement. (d) The Company has made available to Parent or Parent’s legal or financial advisor: (i) correct and complete copies of each Employee Benefit Plan, including all amendments thereto; (ii) the three most recent annual reports (Series 5500 and all schedules thereto), if any, required under ERISA or the Code, or any similar applicable Laws of other jurisdictions applicable to the Company, in connection with each Employee Benefit Plan or related trust; (iii) if any Employee Benefit Plan is funded, the most recent, if any, annual and periodic accounting of such Employee Benefit Plan’s assets; (iv) the most recent summary plan description for Employee Benefit Plans for which a summary plan description is required by applicable Law, together with the most recent summary of material modifications, if any, with respect to each such Employee Benefit Plan; (v) all IRS determination, opinion, notification and advisory letters and rulings from the IRS or any similar Governmental Entity having jurisdiction over the Company issued to the Company relating to Employee Benefit Plans; (vi) copies of all applications and correspondence to or from the Company regarding actual or threatened audits or investigations to or from the IRS, DOL or any other Governmental Authority with respect to any Employee Benefit Plan, in each case sent or received in the three years prior to the date of this Agreement; (vii) all insurance policies of the Company pertaining to fiduciary liability insurance covering the fiduciaries of each Employee Benefit Plan; and (vii) all discrimination and qualification tests, if any, prepared for each Employee Benefit Plan described in Section 401(k) of the Code. (e) Each Employee Benefit Plan has been established and maintained in accordance with its terms and has complied in form, operation and administration(including, without limitation, with respect to reporting and disclosure) with all applicable Laws, including ERISA and the Code. As of the date of this Agreement, there are no audits, investigations or legal proceedings pending or, to the Knowledge of the Company, threatened by the IRS or DOL or any other similar Governmental Authority having jurisdiction over the Company with respect to any Employee Benefit Plan. All annual reports and other filings required to be filed with the DOL or the IRS or any other similar Governmental Authority having jurisdiction over the Company in respect of each Employee Benefit Plan have been timely made. Neither the Company nor any ERISA Affiliate is subject to any penalty or Tax with respect to any Employee Benefit Plan under Section 501(i) of ERISA or Section 4975 through 4980D of the Code or any similar applicable Laws and no Employee Benefit Plan is sponsored or maintained by any Person that is or was considered to be a co-employer with the Company. (f) No Employee Benefit Plan, and no trustee or administrator thereof, engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which could subject any such Employee Benefit Plan or trustee or administrator thereof to the tax or penalty on prohibited transactions imposed by Section 4975 of the Code. (g) No Employee Benefit Plan is or has threatened at anytime in the past been (i) subject to commencethe minimum funding requirements of Section 412 of the Code or Title IV of ERISA, or (ii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. (h) Each Employee Benefit Plan intended to qualify under Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRS that such Employee Benefit Plan is a “qualified plan” under Section 401(a) of the Code, and the related trusts are exempt from Tax under Section 501(a) of the Code. Since the date of each such determination letter, no event has occurred and no condition exists that would result in the revocation of any such determination letter or opinion letter or that would adversely affect the qualified status of any such Employee Benefit Plan (or the tax-exempt status of any such trust). (i) With respect to Employee Benefit Plans, all required contributions have been made or properly accrued on the Company’s financial statements. (j) Except as set forth in Part 2.14(j) of the Disclosure Schedule with respect to the Company’s payment of certain severance benefits related to the continuation of health insurance premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, the Company does not have any liability under any Employee Benefit Plan to provide medical or death benefits with respect to employees of the Company beyond their termination of employment (other than coverage mandated by Law), and there are no reserve assets, surplus or prepaid premiums under any such Employee Benefit Plan. (k) (A) Except as set forth in Part 2.14(k) of the Disclosure Schedule, no Employee Benefit Plan constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code; (B) the Company has not elected to, nor is it required to, defer payment of amounts from a foreign entity which will be subject to the provisions of Section 457A of the Code; and (C) except as set forth in Part 2.14(k) of the Disclosure Schedule, the Company has no obligation to gross-up or otherwise reimburse any Person for any tax incurred by such Person pursuant to Section 409A of the Code. (l) With respect to each Employee Benefit Plan which provides for the grant of options to purchase stock of the Company, each such stock option has been granted at an exercise price equal to no less than the fair market value of the Company stock, at the date of grant and there has been no “backdating” of any such stock options. No Employee Benefit Plan, including the administration thereof, is or has been in violation of Section 409A of the Code such that any tax or other penalty would be due (from any person) under Section 409A of the Code. (m) The Company has no obligation and has had no obligation to contribute to any “multiemployer plan” within the meaning of Section 3(37) of ERISA or “multiple employee plan” within the meaning of Section 201 of ERISA. (n) Neither the (i) termination of employment of each of the employees of the Company and/or the transfer of employees to Aerial (as defined in Section 4.6) nor (ii) the termination of engagement of each of the independent contractors of the Company will result in any liabilities or obligations for the Parent or the Surviving Corporation. (o) The Company has properly classified for all purposes (including, without limitation, for all Tax purposes, wage and hour purposes and for purposes of determining eligibility to participate in any employee benefit plan) all employees, leased employees, consultants and independent contractors, and has withheld and paid all applicable Taxes and made all appropriate filings in connection with services provided by such persons to the Company. The Company has not incurred, and no circumstances exist under which the Company would reasonably be expected to incur, any such slowdownliability arising from the misclassification of employees as consultants or independent contractors, work stoppagefrom the misclassification of consultants or independent contractors as employees, labor dispute and/or from the misclassification of employees as exempt from the requirements of the Fair Labor Standards Act. (p) Without limiting any other provision of this Section 2.14, no event has occurred and no condition exists, with respect to any Employee Benefit Plan, that has subjected or union organizing activity could subject the Company or any similarEmployee Benefit Plan or any successor thereto, to any tax, fine, penalty or other liability (other than a liability arising in the normal course to make contributions or payments, as applicable, when ordinarily due under the Employee Benefit Plans with respect to employees (or, if applicable, independent contractors) of the Company). No event has occurred and no condition exists, with respect to any Employee Benefit Plan that could subject Parent or any of its affiliates, or any employee benefit plan maintained by Parent or Merger Sub, to any tax, fine, penalty or other liability, that would not have been incurred by Parent or Merger Sub, or any such employee benefit plan, but for the transactions contemplated hereby. Parent and Merger Sub (including without limitation, on and after the Closing, the Company) shall have no liability for, under, with respect to or otherwise in connection with any Employee Benefit Plan, which liability arises under ERISA or the Code, by virtue of the Company being aggregated, with any other person that is an ERISA Affiliate, in a controlled group or affiliated service group for purposes of ERISA or the Code at any relevant time prior to the Closing. (q) The Company does not have any commitment to create, modify or terminate any employee benefit plan. No event has occurred and no condition exists that would prevent the amendment or termination of any Employee Benefit Plan in accordance with its terms, and no Employee Benefit Plan restricts the amendment or termination thereof (other than as necessary to comply with law or the Code). No event has occurred and no condition exists that would be reasonably expected to result in a material increase in the benefits under or the expense of maintaining any Employee Benefit Plan from the level of benefits or expense incurred for the most recent fiscal year ended thereof. (r) No arbitration order, court decision, governmental order or Material Contract to which the Company is a party or is subject in any limits or restricts the Company from relocating or closing any of the operations of the Company. (s) The Company is, and at all times since its inception has been, in compliance with all applicable Laws respecting employment and employment practices and terms and conditions of employment, including but not limited to wages and hours and the classification of employees and independent contractors.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' Company’s and any of its Subsidiaries’ employees is terminable by the Company or the applicable Acquired Corporation Subsidiary at will (subject or otherwise in accordance with general principles of wrongful termination law) (except for employees of the Company located in a jurisdiction that does not recognize the “at will” employment concept). The Company has made available to notice periods not longer than sixty (60) days)Arrow accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of Company Associates to the extent currently effective and material. (cb) To the Knowledge of the Company, no employee officer or Key Employee of the Company or any of its Subsidiaries intends to terminate his or her employment with the Acquired Corporations Company or the applicable Subsidiary, nor has any such officer or Key Employee threatened or expressed in writing any intention to do so. (c) Neither the Company nor any of its Subsidiaries is a party to, bound by, nor has a duty to or is bound by bargain under, any confidentiality agreement, noncompetition collective bargaining agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting organization representing any of the Acquired Corporations or any of their its employees. As of the date of this Agreement, there is not now pending, and there are no labor organizations representing, purporting to represent or, to the Knowledge of the Company, no Person seeking to represent any employees of the Company or any of its Subsidiaries. (d) There has threatened to commencenever been, nor has there been any threat of, any such strike, slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar union activity or dispute, affecting the Company or any of its Subsidiaries. (e) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries is or has been engaged in any unfair labor practice within the meaning of the National Labor Relations Act. There is no Legal Proceeding, claim, labor dispute or union organizing activity grievance pending or, to the Knowledge of the Company, threatened or reasonably anticipated relating to any employment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any Company Associate, including charges of unfair labor practices or discrimination complaints. Part 2.17(e) of the Company Disclosure Schedule lists all material written and all non-written employee benefit plans (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) and all material bonus, equity-based, incentive, deferred compensation, retirement or supplemental retirement, profit sharing, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs and other similar fringe or employee benefit plans, programs or arrangements, including any employment or executive compensation or severance agreements, written or otherwise, which are currently in effect relating to any present or former employee or director of the Company or any similarof its Subsidiaries (or any trade or business (whether or not incorporated) which is a Company Affiliate) or which is maintained by, administered or contributed to by, or required to be contributed to by, the Company, any of its Subsidiaries or any Company Affiliate, or under which the Company or any of its Subsidiaries or any Company Affiliate has any current or may incur liability after the date hereof (each, a “Company Employee Plan”). (f) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination with respect to such qualified status from the Internal Revenue Service. Nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Employee Plan or the exempt status of any related trust. (g) Each Company Employee Plan has been maintained in compliance in all respects with its terms and, both as to form and operation, with all applicable Legal Requirements, including the Code and ERISA. (h) Neither the Company nor any of its Subsidiaries has engaged in any transaction in violation of Sections 404 or 406 of ERISA or any “prohibited transaction,” as defined in Section 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or (d) of the Code, or has otherwise violated the provisions of Part 4 of Title I, Subtitle B of ERISA. Neither the Company nor any of its Subsidiaries has knowingly participated in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any Company Employee Plan subject to ERISA and neither the Company nor any of its Subsidiaries has been assessed any civil penalty under Section 502(l) of ERISA. Neither the Company nor any of its Subsidiaries, or to the Knowledge of the Company, any of its agents or any fiduciary other than the Company, has been in material breach of any contractual or fiduciary obligation with respect to the administration of the Company Employee Plans or trusts or other funding media related thereto. (i) No Company Employee Plan is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any of its Subsidiaries or Company Affiliate has ever maintained, contributed to or partially or completely withdrawn from, or incurred any obligation or liability with respect to, any such plan. No Company Employee Plan is a Multiemployer Plan, and neither the Company nor any of its Subsidiaries or Company Affiliate has ever contributed to or had an obligation to contribute, or incurred any liability in respect of a contribution, to any Multiemployer Plan. No Company Employee Plan is a Multiple Employer Plan. (j) No Company Employee Plan provides for medical or death benefits beyond termination of service or retirement, other than (i) pursuant to COBRA or an analogous state law requirement or (ii) death or retirement benefits under a Company Employee Plan qualified under Section 401(a) of the Code. (k) The Company and each of its Subsidiaries has complied, in all material respects, with all state and federal laws applicable to employees, including but not limited to COBRA, FMLA, CFRA, HIPAA, the Women’s Health and Cancer Rights Act of 1998, the Newborn’s and Mothers’ Health Protection Act of 1996, and any similar provisions of state law applicable to its employees. To the extent required under HIPAA and the regulations issued thereunder, the Company and each of its Subsidiaries has, prior to the Closing Date, performed all material obligations under the medical privacy rules of HIPAA (45 C.F.R. Parts 160 and 164), the electronic data interchange requirements of HIPAA (45 C.F.R. Parts 160 and 162), and the security requirements of HIPAA (45 C.F.R. Part 142). Neither the Company nor any of its Subsidiaries has any unsatisfied obligations to any employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage or extension. (l) The Company and each of its Subsidiaries is in material compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime wages), compensation, and hours of work, and in each case, with respect to employees: (i) has withheld and reported all material amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees, (ii) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing and (iii) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no actions, suits, claims or administrative matters pending, threatened or reasonably anticipated against the Company or any of its Subsidiaries relating to any employee, employment agreement or Company Employee Plan. There are no pending or, to the Knowledge of the Company, threatened or reasonably anticipated claims or actions against the Company, any of its Subsidiaries, any Company trustee or any trustee of any Subsidiary under any worker’s compensation policy or long-term disability policy. Neither the Company nor any Subsidiary thereof is party to a conciliation agreement, consent decree or other agreement or order with any federal, state, or local agency or governmental authority with respect to employment practices. Part 2.17(l) of the Company Disclosure Schedule lists all liabilities of the Company or any of its Subsidiaries to any of their respective employees that result from the termination by the Company or any of its Subsidiaries of such employee’s employment or provision of services, a change of control of the Company, or a combination thereof. Neither the Company nor any of its Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer or (c) any employee currently or formerly classified as exempt from overtime wages. Neither the Company nor any of its Subsidiaries has taken any action which would constitute a “plant closing” or “mass layoff” within the meaning of the WARN Act or similar state or local law, issued any notification of a plant closing or mass layoff required by the WARN Act or similar state or local law, or incurred any liability or obligation under WARN or any similar state or local law that remains unsatisfied. No terminations of employees of the Company or any of its Subsidiaries prior to the Closing would trigger any notice or other obligations under the WARN Act or similar state or local law. (m) Part 2.17(m) of the Company Disclosure Schedule lists all liabilities of the Company or any of its Subsidiaries to any employee, that result from the termination by the Company or any of its Subsidiaries of such employee’s employment or provision of services, a change of control of the Company, or a combination thereof. Neither the Company nor any of its Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer or (c) any employee currently or formerly classified as exempt from overtime wages. (n) The Company has obtained a Form I-9 with respect to all of its current and former employees for whom such a form is required by law. Every Person who requires a visa, employment pass or other required permit to work in the country in which he is employed has produced a current employment pass or such other required permit to the Company and possesses all necessary permission to remain in such country and perform services in that country. (o) With respect to each Company Employee Plan, the Company has made available to Arrow a true and complete copy of, to the extent applicable, (i) such Company Employee Plan, (ii) the most recent annual report (Form 5500) as filed with the Internal Revenue Service, if any (iii) each currently effective trust agreement related to such Company Employee Plan, (iv) the most recent summary plan description for each Company Employee Plan for which such description is required, along with all summaries of material modifications, amendments, resolutions and all other material plan documentation related thereto in the possession of the Company and (v) the most recent Internal Revenue Service determination or opinion letter or analogous ruling under foreign law issued with respect to any Company Employee Plan. (p) To the Knowledge of the Company, each “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company makes, is obligated to make or promises to make, payments (each, a “Company 409A Plan”) complies in all material respects, in both form and operation, with the requirements of Code Section 409A and the guidance thereunder. No payment to be made under any Company 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Code Section 409A(a)(1). (q) All contributions or premiums required to be made by the Company or its Subsidiaries under the terms of each Company Employee Plan, any collective bargaining agreement or by law have been made in a timely fashion in all material respects in accordance with applicable law and the terms of the Company Employee Plans and any applicable collective bargaining agreement, and the Company does not have, and as of the Closing will not have, any actual or potential unfunded liabilities (other than liabilities accruing after Closing) with respect to any of the Company Employee Plans.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.16(a) of the Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this AgreementSchedule, the employment of each of the Acquired Corporations' ’ employees who perform services within the United States is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To Except as set forth in Part 2.16(b) of the Company Disclosure Schedule, to the Knowledge of the Company, as of the date of this Agreement: (i) no officer or other employee of any of the Acquired Corporations at the level of Vice President or above or having a base salary in excess of $200,000 (a “Key Employee”): (A) has provided written notice to any Acquired Corporation of any intention to terminate his or her employment with any of the Acquired Corporations; or (B) has notified any Acquired Corporation of any intention to terminate his or her employment with any of the Acquired Corporations as a result of the Merger or the other transactions contemplated by this Agreement; and (ii) no employee of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) Person other than any of the Acquired Corporations that is reasonably likely to may have a material adverse effect on the business or operations of any of the Acquired Corporations taken as a wholeCorporations. (dc) As of the date of this Agreement, none of the Acquired Corporations is a party to, or has a duty to or bound by bargain for, any union Contract or collective bargaining agreement. (e) As agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the Knowledge of the date Company, seeking to represent any employees of this Agreement, none any of the Acquired Corporations is engaged in any unfair labor practice of any natureCorporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or union organizing activity or any similarsimilar activity or dispute. There is no material claim or material grievance pending or, to the Knowledge of the Company, threatened relating to any employment Contract, wages and hours, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (d) To the Knowledge of the Company, no misclassification of any current or former independent contractors, consultants, temporary workers, outsourced workers, leased employees or other non-employee service providers of any of the Acquired Corporations would reasonably be expected to result in a material Liability to any Acquired Corporation. (e) The Company has set forth in Part 2.16(e) of the Company Disclosure Schedule a list of all employees and other service providers (including independent contractors) of the Acquired Corporations as of the date of this Agreement, and correctly reflects with respect to each such employee or other service provider, as applicable: (i) date of hire; (ii) job titles and position; (iii) rate of pay or annual salary; (iv) visa status; (v) any promises made to him or her with respect to changes or additions to compensation or benefits; and (vi) whether he or she is not fully available to perform work because of disability or other leave and the date he or she is expected to return to active service. (f) The Company has set forth in Part 2.16(f) of the Company Disclosure Schedule an accurate and complete list, by country and as of the date hereof, of each material Company Employee Plan and each Company Employee Agreement. None of the Acquired Corporations intends, and none of the Acquired Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform or seek the approval of any such Company Employee Plan or Company Employee Agreement to satisfy applicable Legal Requirements). (g) The Company has Made Available to Parent, to the extent applicable, accurate and complete copies of: (i) all material documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts, other than any written agreements with employees of the Acquired Corporations relating to Company Equity Awards or the Company Equity Plans; (vi) all material correspondence since January 1, 2012 to or from any Governmental Body relating to any Company Employee Plan; (vii) if applicable, all nondiscrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the most recent plan year; and (viii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (h) Each of the Acquired Corporations has performed in all material respects all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in all material respects in accordance with its terms and with all applicable provisions of ERISA, the Code and other Legal Requirements. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Company Employee Plans required to have been approved by any non-U.S. Governmental Body have been so approved, no such approval has been revoked (or, to the Knowledge of the Company, has revocation been threatened) and, to the Knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Company Employee Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is, to the Knowledge of the Company, so tax qualified, and, to the Knowledge of the Company, no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without Liability to Parent or any of the Acquired Corporations (other than any Liability for ordinary administration expenses). There are no audits or inquiries pending or, to the Knowledge of the Company, threatened by the IRS, the United States Department of Labor or any other Governmental Body with respect to any Company Employee Plan. None of the Acquired Corporations has ever incurred: (i) any material penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the Acquired Corporations has timely made all contributions and other payments required by and due under the terms of each Company Employee Plan. (i) None of the Acquired Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Employee Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Company Employee Plan subject to ERISA holds stock of any of the Acquired Corporations as a plan asset. Except as would not otherwise result in a Company Material Adverse Effect, the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and neither the Merger nor any of the other transactions contemplated by this Agreement will cause any such assets or insurance obligations to be less than such benefit obligations. (j) None of the Acquired Corporations maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Acquired Corporations), or reflects or represents any Liability of any of the Acquired Corporations to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the Acquired Corporations, none of the Acquired Corporations has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. There are no liabilities of the Acquired Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (k) Except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Merger or any of the transactions contemplated by this Agreement would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate, or to create or otherwise result in any Liability with respect to any Company Employee Plan. (l) Each of the Acquired Corporations: (i) is in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; and (ii) has withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates. No Acquired Corporation or Company Affiliate: (A) is liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; or (B) is liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practice). (m) There is no agreement, plan, arrangement or other Contract covering any director or officer or other employee of an Acquired Corporation, and no payments have been made or will be made to any director or officer or other employee of an Acquired Corporation, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, result in any payment that will not be deductible by the Acquired Corporations by reason of Section 280G of the Code, or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under U.S. state or local or non-U.S. Tax Legal Requirements). No Acquired Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or any taxes required by Section 409A of the Code. (n) To the Knowledge of the Company, neither: (i) the execution or delivery of this Agreement; nor (ii) the carrying on of the business of any Acquired Corporation as presently conducted or any activity of any director or officer or other employee of an Acquired Corporation in connection with the carrying on of the business of any Acquired Corporation as currently conducted, will or would reasonably be expected to conflict with, result in a breach of the terms, conditions or provisions of or constitute a default under any Contract by which any such director or officer or other employee is now bound. (o) Since January 1, 2011, none of the Acquired Corporations has effectuated a “plant closing,” partial “plant closing,” “relocation”, “mass layoff” or “termination” (as defined in the Worker Adjustment and Retraining Notification Act or any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the Acquired Corporations. (p) Each Company Employee Plan that is subject to Section 409A of the Code has been operated and administered in material compliance with Section 409A of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee employment of each of the Acquired Corporations (including any Company’s employees is terminable by the Company at will. The Company has made available to PubCo accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of any of Company Associates to the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed extent currently effective and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002material. (b) As of the date of this Agreement, the employment of each no officer or Key Employee of the Acquired Corporations' employees is terminable by Company has expressed any written or oral intention to the applicable Acquired Corporation at will (subject Company to notice periods not longer than sixty (60) days)terminate his, her or its employment or service arrangement with the Company. (c) The Company is not a party to, is not bound by and does not have a duty to bargain under, any collective bargaining agreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing or, to the Knowledge of the Company, purporting to represent or seeking to represent any employees of the Company. During the past three (3) years, there has not been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar activity or dispute, affecting the Company. To the Knowledge of the Company, no employee event has occurred within the past six (6) months, to the Knowledge of the Company, and no condition or circumstance exists, that might directly or indirectly be likely to give rise to or provide a basis for the commencement of any of the Acquired Corporations is a party to or is bound by any confidentiality agreementsuch strike, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or lockout, job action, union organizing activity, question concerning representation or any similar activity or dispute. The Company is not, affecting nor has the Company been, engaged in any Unfair Labor Practice within the meaning of the Acquired Corporations or any of their employees. As National Labor Relations Act. (d) Section 3.17(d) of the date Company Disclosure Schedule sets forth a true, complete and correct list of this Agreementevery material Company Employee Plan. True, there complete and correct copies of the following documents, with respect to each Company Employee Plan, where applicable, have been made available to PubCo: (i) all documents embodying or governing such Company Employee Plan (or for unwritten Company Employee Plans a written description of such Company Employee Plan) and any funding medium for the Company Employee Plan; (ii) the most recent IRS determination or opinion letter; (iii) the most recently filed Form 5500; (iv) the most recent actuarial valuation report; (v) the most recent summary plan description (or other descriptions provided to employees) and all modifications thereto; (vi) the last three years of non-discrimination testing results; and (vii) all non-routine correspondence to and from any governmental agency. (e) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or approval letter from the IRS with respect to such qualification, or may rely on an opinion letter issued by the IRS with respect to a prototype plan adopted in accordance with the requirements for such reliance, or has time remaining for application to the IRS for a determination of the qualified status of such Company Employee Plan for any period for which such Company Employee Plan would not now pendingotherwise be covered by an IRS determination and, and to the Knowledge of the Company, no Person event or omission has occurred that could reasonably be expected to cause any Company Employee Plan to lose such qualification or require corrective action to the IRS or Employee Plan Compliance Resolution System to maintain such qualification. (f) Each Company Employee Plan has been established, operated and administered in all material respects in accordance with its terms and all applicable Law, including, the Code, ERISA, and the Affordable Care Act. No Company Employee Plan is, or within the past six years has been, the subject of an application or filing under a government sponsored amnesty, voluntary compliance, or similar program, or been the subject of any self-correction under any such program. No Legal Proceeding (other than those relating to routine claims for benefits) is pending or, to the Knowledge of the Company, threatened with respect to commenceany Company Employee Plan and, to the Knowledge of the Company, there is no reasonable basis for any such Legal Proceeding. All payments and/or contributions required to have been made with respect to all Company Employee Plans either have been made or have been accrued in accordance with the terms of the applicable Company Employee Plan and applicable Law. The Company Employee Plans satisfy in all material respects the minimum coverage, affordability and non-discrimination requirements under the Code. (g) Neither the Company nor any of its subsidiaries provides or has any obligation to provide health care or any other non-pension benefits to any employees after their employment is terminated (other than as required by COBRA or similar state Law) and the Company has never promised to provide such post-termination benefits. (h) Each Company Employee Plan may be amended, terminated, or otherwise modified (including cessation of participation) by the Company to the greatest extent permitted by applicable Law, including the elimination of any and all future benefit accruals thereunder (other than ordinary administration expenses or with respect to benefits, other than bonuses, commissions or amounts under other compensation plans, that were previously earned, vested or accrued under Company Employee Plans prior to the Effective Time) and no employee communication or provision of any Company Employee Plan has failed to effectively reserve the right of the Company to so amend, terminate or otherwise modify such Company Employee Plan. Neither the Company nor any of its subsidiaries has announced its intention to modify or terminate any Company Employee Plan or adopt any arrangement or program which, once established, would come within the definition of a Company Employee Plan. Each asset held under each Company Employee Plan may be liquidated or terminated without the imposition of any redemption fee, surrender charge or comparable liability. (i) No Company Employee Plan provides for medical or any other welfare benefits to any service provider beyond termination of service or retirement, other than pursuant to (1) COBRA or an analogous state law requirement, or (2) continuation coverage through the end of the month in which such termination or retirement occurs. The Company does not sponsor or maintain any self-funded medical or long-term disability employee benefit plan. (j) No Company Employee Plan is subject to any Law of a foreign jurisdiction outside of the United States. (k) The per share exercise price of each Company Option is no less than the fair market value of a share of Company Common Stock on the date of grant of such Company Option, determined in a manner consistent with Section 409A of the Code. Each Company Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Company Employee Plan is, or to the Knowledge of the Company, will be, subject to the penalties of Section 409A(a)(1) of the Code. Any transfer of property which was subject to a substantial risk of forfeiture and which would otherwise have been subject to taxation under Section 83(a) of the Code is covered by a valid and timely filed election under Section 83(b) of the Code, and a copy of such election has been provided to PubCo. (l) The Company is, and since January 1, 2020 has been, in material compliance with all applicable federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime wages), compensation, and hours of work, and in each case, with respect to the employees of the Company: (i) has withheld and reported all material amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees, (ii) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the Ordinary Course of Business). There are no, and since January 1, 2020 there have not been any, actions, suits, claims or administrative matters pending or, to the Knowledge of the Company, threatened against the Company relating to any employee, employment agreement or Company Employee Plan (other than routine claims for benefits). To the Knowledge of the Company, there are no pending or threatened claims or actions against the Company, any such slowdownCompany trustee under any workers’ compensation policy or long-term disability policy. The Company is not a party to a conciliation agreement, work stoppageconsent decree or other agreement or Order with any federal, state, or local agency or Governmental Authority with respect to employment practices. (m) Since January 1, 2020, the Company has no material liability with respect to any misclassification: (i) any Person as an independent contractor rather than as an employee, (ii) any employee leased from another employer, or (iii) any employee currently or formerly classified as exempt from overtime wages. The Company has not taken any action which would constitute a “plant closing” or “mass layoff” within the meaning of the WARN Act or similar state or local law, issued any notification of a plant closing or mass layoff required by the WARN Act or similar state or local law, or incurred any liability or obligation under WARN or any similar state or local law that remains unsatisfied. (n) There is no, and since January 1, 2020 there has not been any, Legal Proceeding, claim, labor dispute or union organizing activity grievance pending or, to the Knowledge of the Company, threatened relating to any employment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any Company Associate, including charges of Unfair Labor Practices or discrimination complaints. (o) The consummation of the transactions contemplated in this Agreement will not (i) entitle any employee, officer, director, independent contractor or other service provider of the Company to severance pay, unemployment compensation, bonus payment or any similarother payment, (ii) accelerate the time of payment for vesting of, or increase the amount of compensation due to, any such employee, officer, director, independent contractor or other service provider, or (iii) entitle any such employee, officer, director, independent contractor or other service provider to terminate, shorten or otherwise change the terms of his or her employment or engagement with the Company. (p) No Company Employee Plan provides for any Tax “gross-up” or similar “make-whole” payments. (q) Neither the execution and delivery of this Agreement, the shareholder approval of this Agreement, nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) (i) further restrict any rights of the Company to amend or terminate any Company Employee Plan; or (ii) result in any “parachute payment” as defined in Section 280G(b)(2) of the Code (whether or not such payment is considered to be reasonable compensation for services rendered). (r) The representations and warranties set forth in this Section 3.17, shall constitute the only representations and warranties of the Company with respect to employment and labor matters.

Employee and Labor Matters; Benefit Plans. (a) The employment of each of Arrow’s and any of its Subsidiaries’ employees is terminable by Arrow or the applicable Subsidiary at will (or otherwise in accordance with general principles of wrongful termination law) (except for employees of Arrow located in a jurisdiction that does not recognize the “at will” employment concept). Arrow has made available to the Company accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of Arrow Associates to the extent currently effective and material. (b) To the Knowledge of Arrow, no officer or Key Employee of Arrow or any of its Subsidiaries intends to terminate his or her employment with Arrow or the applicable Subsidiary, nor, to the Knowledge of Arrow, has any such officer or Key Employee threatened or expressed in writing any intention to do so. (c) Neither Arrow nor any of its Subsidiaries is a party to, bound by, nor has a duty to bargain under, any collective bargaining agreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing, purporting to represent or, to the Knowledge of Arrow, seeking to represent any employees of Arrow or any of its Subsidiaries. (d) There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar union activity or dispute, affecting Arrow or any of its Subsidiaries. (e) To the Knowledge of Arrow, neither Arrow nor any of its Subsidiaries is or has been engaged in any unfair labor practice within the meaning of the National Labor Relations Act. There is no Legal Proceeding, claim, labor dispute or grievance pending or, to the Knowledge of Arrow, threatened or reasonably anticipated relating to any employment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, workers’ compensation policy, long-term disability policy, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any Arrow Associate, including charges of unfair labor practices or discrimination complaints. Part 3.17(e) of the Arrow Disclosure Schedule accurately sets forth lists all material written and all non-written employee benefit plans (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) and all material bonus, equity-based, incentive, deferred compensation, retirement or supplemental retirement, profit sharing, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs and other similar fringe or employee benefit plans, programs or arrangements, including any employment or executive compensation or severance agreements, written or otherwise, which are currently in effect relating to any present or former employee or director of Arrow or any of its Subsidiaries (or any trade or business (whether or not incorporated) which is an Arrow Affiliate) or which is maintained by, administered or contributed to by, or required to be contributed to by, the Company, any of its Subsidiaries or any Arrow Affiliate, or under which Arrow or any of its Subsidiaries or any Arrow Affiliate has any current or may incur liability after the date hereof (each, an “Arrow Employee Plan”). (f) Each Arrow Employee Plan that is intended to be qualified under Section 401(a) of the date Code has received a favorable determination with respect to such qualified status from the Internal Revenue Service. Nothing has occurred that would reasonably be expected to adversely affect the qualified status of this Agreement any such Arrow Employee Plan or the following informationexempt status of any related trust. (g) Each Arrow Employee Plan has been maintained in compliance in all material respects with its terms and, accurate both as to form and operation, with all applicable Legal Requirements, including the Code and ERISA. (h) Neither Arrow nor any of its Subsidiaries has engaged in any transaction in violation of Sections 404 or 406 of ERISA or any “prohibited transaction,” as defined in Section 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or (d) of the Code, or has otherwise violated the provisions of Part 4 of Title I, Subtitle B of ERISA. Neither Arrow nor any of its Subsidiaries has knowingly participated in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any Arrow Employee Plan subject to ERISA and neither Arrow nor any of its Subsidiaries has been assessed any civil penalty under Section 502(l) of ERISA. Neither Arrow nor any of its Subsidiaries, or to the Knowledge of Arrow, any of its agents or any fiduciary other than Arrow has been in material breach of any contractual or fiduciary obligation with respect to the administration of the Arrow Employee Plans or trusts or other funding media related thereto. (i) No Arrow Employee Plan is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, and neither Arrow nor any of its Subsidiaries or Arrow Affiliate has ever maintained, contributed to or partially or completely withdrawn from, or incurred any obligation or liability with respect to, any such plan. No Arrow Employee Plan is a Multiemployer Plan, and neither Arrow nor any of its Subsidiaries or Arrow Affiliate has ever contributed to or had an obligation to contribute, or incurred any liability in respect of a contribution, to any Multiemployer Plan. No Arrow Employee Plan is a Multiple Employer Plan. (j) No Arrow Employee Plan (other than Arrow’s obligations to reimburse or pay COBRA premiums or state equivalent benefits to current or former employees pursuant to an Arrow Employee Plan) provides for medical or death benefits beyond termination of service or retirement, other than (i) pursuant to COBRA or an analogous state law requirement or (ii) death or retirement benefits under an Arrow Employee Plan qualified under Section 401(a) of the Code. (k) Arrow and each of its Subsidiaries has complied, in all material respects, with all state and federal laws applicable to employees, including but not limited to COBRA, FMLA, CFRA, HIPAA, the Women’s Health and Cancer Rights Act of 1998, the Newborn’s and Mothers’ Health Protection Act of 1996, and any similar provisions of state law applicable to its employees. To the extent required under HIPAA and the regulations issued thereunder, Arrow and each of its Subsidiaries has, prior to the Closing Date, performed all material obligations under the medical privacy rules of HIPAA (45 C.F.R. Parts 160 and 164), the electronic data interchange requirements of HIPAA (45 C.F.R. Parts 160 and 162), and the security requirements of HIPAA (45 C.F.R. Part 142). Neither Arrow nor any of its Subsidiaries has any unsatisfied obligations to any employees or qualified beneficiaries pursuant to COBRA, HIPAA or any state law governing health care coverage or extension. (l) Arrow and each of its Subsidiaries is in material compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime wages), compensation, and hours of work, and in each case, with respect to employees: (i) has, in all material respects, withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees, (ii) is not liable for any material amount in respect of any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no actions, suits, claims or administrative matters pending, threatened or reasonably anticipated against Arrow or any of its Subsidiaries relating to any employee, employment agreement or Arrow Employee Plan. There are no pending or, to the Knowledge of Arrow, threatened or reasonably anticipated claims or actions against Arrow, any of its Subsidiaries, any Arrow trustee or any trustee of any Subsidiary under any worker’s compensation policy or long-term disability policy. Neither Arrow nor any Subsidiary thereof is party to a conciliation agreement, consent decree or other agreement or order with any federal, state, or local agency or governmental authority with respect to employment practices. Neither Arrow nor any of its Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer, or (c) any employee currently or formerly classified as exempt from overtime wages. Neither Arrow nor any of its Subsidiaries has taken any action which would constitute a “plant closing” or “mass layoff” within the meaning of the WARN Act or similar state or local law, issued any notification of a plant closing or mass layoff required by the WARN Act or similar state or local law, or incurred any liability or obligation under WARN or any similar state or local law that remains unsatisfied. No terminations of employees of Arrow or any of its Subsidiaries prior to the Closing would trigger any notice or other obligations under the WARN Act or similar state or local law. (m) Part 3.17(m) of the Arrow Disclosure Schedule lists all liabilities of Arrow or any of its Subsidiaries to any employee, that result from the termination by Arrow or any of its Subsidiaries of such employee’s employment or provision of services, a change of control of Arrow, or a combination thereof. Neither Arrow nor any of its Subsidiaries has any material liability with respect to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer, or (c) any employee currently or formerly classified as exempt from overtime wages. (n) Arrow has obtained a Form I-9 with respect to all of its current and former employees for whom such a form is required by law. Every Person who requires a visa, employment pass or other required permit to work in the country in which he is employed has produced a current employment pass or such other required permit to Arrow and possesses all necessary permission to remain in such country and perform services in that country. (o) With respect to each employee of each of Arrow Employee Plan, Arrow has made available to the Acquired Corporations (including any employee of any of Company a true and complete copy of, to the Acquired Corporations who is on a leave of absence or on layoff status): extent applicable, (i) the name of such employeeArrow Employee Plan, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and the most recent annual report (Form 5500) as filed with the Internal Revenue Service, if any (iii) each currently effective trust agreement related to such Arrow Employee Plan, (iv) the salary received by most recent summary plan description for each Arrow Employee Plan for which such employee description is required, along with all summaries of material modifications, amendments, resolutions and all other material plan documentation related thereto in the possession of Arrow, and (Av) the most recent Internal Revenue Service determination or opinion letter or analogous ruling under foreign law issued with respect to services performed any Arrow Employee Plan. (p) Except where non-compliance would not result in 2001 and (B) material liability, with respect to services performed from January 1 through November 30Arrow Options granted pursuant to the Arrow Stock Plans, 2002(i) each Arrow Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of an Arrow Option was duly authorized no later than the date on which the Grant Date by all necessary corporate action, including, as applicable, approval by the Arrow Board (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, and (iii) each Arrow Option grant was made in material compliance with the terms of the Arrow Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of NASDAQ and any other exchange on which Arrow securities are traded. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (cq) To the Knowledge of the CompanyArrow, no employee Arrow Options, stock appreciation rights or other equity-based awards issued or granted by Arrow are subject to the requirements of any Code Section 409A. To the Knowledge of Arrow, each “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Acquired Corporations Code and the guidance thereunder) under which Arrow makes, is obligated to make or promises to make, payments (each, a party “409A Plan”) complies in all material respects, in both form and operation, with the requirements of Code Section 409A and the guidance thereunder. No payment to or is bound by be made under any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity409A Plan is, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and to the Knowledge of Arrow will be, subject to the Company, no Person has threatened penalties of Code Section 409A(a)(1). (r) No Arrow Employee Plan is a “registered pension plan” as that term is defined in subsection 248(1) of the Tax Act. (s) All contributions or premiums required to commencebe made by Arrow or its Subsidiaries under the terms of each Arrow Employee Plan, any such slowdowncollective bargaining agreement or by law have been made in a timely fashion in all material respects in accordance with applicable law and the terms of the Arrow Employee Plans and any applicable collective bargaining agreement, work stoppageand Arrow does not have, labor dispute and as of the Closing will not have, any actual or union organizing activity or potential unfunded liabilities (other than liabilities accruing after Closing) with respect to any similarof the Arrow Employee Plans.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company’s Knowledge, no employee of any of the Acquired Corporations Company Employee is a party to or is bound by any confidentiality agreementnon-competition agreement that limits the employee’s ability to provide services to the Company. (b) As of the Agreement Date, noncompetition except as set forth on Part 3.20(b) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other Contract with a labor organization representing any Company Employee (a “Collective Bargaining Agreement”), and there are no labor organizations representing, purporting to represent or, to the Company’s Knowledge, seeking to represent any Company Employee. (c) Except to the extent provided in the applicable subsections of Part 3.20(c) of the Company Disclosure Schedule (which such subsections correspond with the subsections in this Section 3.20(c)): (i) none of the Company Employees have been, or currently are, represented by a labor organization or group that was either certified or voluntarily recognized by any labor relations board, including, without limitation, the National Labor Relations Board or any other Governmental Body; (ii) no representation election petition or application for certification has been filed by any of the Company Employees or is pending with the National Labor Relations Board or any other Governmental Body and no union organizing campaign or other attempt to organize or establish a labor union, employee organization or labor organization or group involving Company Employees has occurred, is in progress, or, to the Company’s Knowledge, is threatened. (iii) neither the Company nor any of its Subsidiaries has entered into any Collective Bargaining Agreements in the past; (iv) neither the Company nor any of its Subsidiaries has suffered any labor dispute, any activity or proceeding by a labor union or representative thereof to organize any Company Employees or any picketing, lockouts, strikes, slowdowns, work stoppages, job actions or threats thereof by or with respect to any Company Employee; (d) Part 3.20(d) of the Disclosure Schedule contains a complete and accurate list of each written and oral: (i) Company Employee Plan; (ii) Company Employment Agreement; and (iii) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC). With respect to each Company Employee Plan other than a Company Employee Plan that is maintained in any non-U.S. jurisdiction (together, the “International Employee Plans”), to the extent applicable, the Company has made available to Parent complete and accurate copies of: (A) the most recent annual report on Form 5500 required to have been filed with the Internal Revenue Service for each Company Employee Plan, including all schedules and attachments thereto; (B) the most recent determination letter, if any, from the Internal Revenue Service for any Company Employee Plan that is intended to qualify under Section 401(a) of the Code; (C) the current and historical plan documents and summary plan descriptions, and for each Company Employee Plan that is not in writing, a written description of the terms of such Company Employee Plan; (D) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements; (E) any notices to or from the Internal Revenue Service or the Department of Labor relating to any material compliance issues in respect of any such Company Employee Plan; (F) copies of all minutes and resolutions of any fiduciary or administrative committee meetings with respect to each Company Employee Plan; and (G) with respect to each International Employee Plan, to the extent applicable, (1) the most recent annual report or similar compliance documents required to be filed with any PersonGovernmental Body with respect to such plan and (2) any document comparable to the determination letter referenced in clause (B) of this sentence above issued by a Governmental Body relating to the satisfaction of Law necessary to obtain the most favorable tax treatment. (e) Except as set forth on Part 3.20(e) of the Disclosure Schedule, no Company Employee Plan is, nor has the Company, any of its Subsidiaries or any Company Affiliates maintained or contributed to or had any liability, obligation or commitment of any kind (“Liability”) in the past six (6) years in connection with any Company Employee Plan that was: (i) a “defined benefit plan” (as defined in Section 414 of the Code or Section 3(35) of ERISA); (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA); (iii) a “multiple employer plan” (as defined in Section 4063 or 4064 of ERISA); (iv) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is reasonably likely subject to have Section 302 of ERISA, Section 412 or 430 of the Code or Title IV of ERISA; or (v) a material adverse effect on the Acquired Corporations taken “multiple employer welfare arrangement” (as a wholedefined in Section 3(40) of ERISA). (df) Each Company Employee Plan and Company Employment Agreement has been established, maintained, operated and documented in all material respects in accordance with its material terms and with all applicable Law, including the applicable provisions of ERISA and the Code. (g) Except as set forth on Part 3.20(g) of the Disclosure Schedule or as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Offer or the Merger will or would reasonably be expected to (either alone or upon the occurrence of termination of employment or service) constitute an event under any Company Employee Plan or Company Employee Agreement that will or may result (either alone or in connection with any other circumstance or event) in: (i) any payment or benefit becoming due or payable, or required to be provided, including any forgiveness of indebtedness, to any current or former Company Employee or other service provider of the Company or any of its Subsidiaries; (ii) any increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former Company Employee or other service provider of the Company or any of its Subsidiaries; (iii) the acceleration of the time of payment, vesting or funding of any such benefit or compensation; or (iv) an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code or the imposition of any excise tax under Section 4999 of the Code. No Contracts or agreements provide for any gross-up payments for any current or former Company Employee of the Company or any of its Subsidiaries to cover any liability for tax under the Code, including but not limited to Sections 4999 or 409A, or similar laws, including state laws. (h) Each Company Employee Plan or Company Employment Agreement that is subject to Section 409A of the Code has been maintained in written form and operated and administered in compliance in all material respects with Section 409A of the Code. No violation of Section 409A of the Code has occurred with respect to any Company Employee Plan or Company Employment Agreement that would trigger additional taxes under Section 409A of the Code. (i) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreementhereof, there has not been any slowdownare no Legal Proceedings pending or, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and to the Knowledge of the Company, threatened on behalf of or against any Company Employee Plan, the assets of any trust under any Company Employee Plan, or the plan sponsor, plan administrator or any fiduciary of any Company Employee Plan with respect to the administration or operation of such plans, other than routine claims for benefits payable in the ordinary course and pursuant to the terms of such plans, and no Person has threatened facts or circumstances exist that would reasonably be expected to commencegive rise to any such Legal Proceedings. (j) None of the Company, any such slowdownof its Subsidiaries, work stoppage, labor dispute or union organizing activity or any similarCompany Affiliates or, to the Knowledge of the Company, any of their respective directors, officers, employees or agents or any third party fiduciary or party in interest with respect to any Company Employee Plan has, with respect to any Company Employee Plan, engaged in or been a party to any non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA, which will or could reasonably be expected to result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code, in each case applicable to the Company, any of its Subsidiaries or any Company Affiliates or any Company Employee Plan or for which the Company or any of its Subsidiaries or any Company Affiliates has any indemnification obligation. (k) No Company Employee Plan that is a “welfare benefit plan” within the meaning of Section 3(1) of ERISA or any Company Employee Agreement provides welfare benefits to former employees, directors, contractors or other service providers of the Company, any of its Subsidiaries or any Company Affiliates, other than pursuant to Section 4980B of the Code or any similar applicable Law and at the sole expense of such former employees, directors, contractors or other service providers. (l) Each Company Employee Plan that is intended to be “qualified” under Section 401 of the Code is so qualified and its related trust is tax-exempt, and, to the Knowledge of the Company, nothing has occurred that could reasonably be expected to cause the loss of such qualified or tax-exempt status and each such plan has timely been amended to comply with all applicable Laws,. (m) To the extent applicable, each International Employee Plan (i) has been approved by the relevant taxation and other Governmental Body so as to enable: (1) the Company or any of its Subsidiaries and the participants and beneficiaries under the relevant International Employee Plan; and (2) in the case of any International Employee Plan under which resources are set aside in advance of the benefits being paid (a “Funded International Employee Plan”), the assets held for the purposes of the Funded International Employee Plans, to enjoy the most favorable taxation status possible; (ii) is in material compliance with the applicable provisions of the laws and regulations regarding employee benefits, mandatory contributions and retirement plans of each jurisdiction applicable to such International Employee Plan; and (iii) required to be registered has been registered and has been maintained in good standing with the applicable regulatory authorities. The fair market value of the assets of each Funded International Employee Plan, the liability of each insurer for any International Employee Plan funded through insurance or the book reserve established for any International Employee Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such International Employee Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, and any and all amounts required to be accrued with respect to any International Employee Plan or pursuant to any statutory requirements pertaining to employee benefits, mandatory contributions, retirement plans or similar benefits, have been properly and timely accrued, including accruals relating to any severance, termination pay or profit sharing benefits. (n) All contributions, premiums and other payments required to be made with respect to any Company Employee Plan have been timely made, accrued or reserved for. (o) Except as required by applicable Law or the terms of any Company Employee Plans as in effect on the date hereof, neither the Company nor any of its Subsidiaries has any plan or commitment to amend in any material respect or establish any new Company Employee Plan or to continue or materially increase any benefits under any Company Employee Plan. (p) Part 3.20(p) of the Disclosure Schedule contains a true and complete list of all persons who incurred an Employment Loss with the Company or any of its Subsidiaries since January 1, 2008, the date of such Employment Loss, each individual’s site of employment and the nature of such Employment Loss. (q) The Company is in compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices and terms and conditions of employment.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.16(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Symyx Corporations' ’ employees is terminable by the applicable Acquired Symyx Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To Except as set forth in Part 2.16(b) of the Knowledge Company Disclosure Schedule, none of the Symyx Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureSymyx Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Symyx Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. Except as set forth in Part 2.16(b) of the Company Disclosure Schedule, there is no claim or grievance pending or, to the knowledge of the Company, threatened relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, by country and as of the date hereof, of each Company Employee Plan and each Company Employee Agreement. None of the Symyx Corporations intends, and none of the Symyx Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to any minimum funding standards (including those of Section 302 of ERISA), the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (vii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (e) Each of the Symyx Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in all material respects in accordance with its terms. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Company Employee Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Company Employee Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Symyx Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan. Except as set forth in Part 2.16 of the Company Disclosure Schedule, there are no pending or, to the knowledge of the Company, threatened claims or Legal Proceedings involving any Company Employee Plan other than routine claims for benefits. None of the Symyx Corporations, and no Company Affiliate, has ever incurred any material penalty or Tax with respect to any Company Employee Plan under applicable Legal Requirements. Each of the Symyx Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion prior to, on or after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code. (f) None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Symyx Corporations or any Company Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Company Foreign Plan, the liability of each insurer for any Company Foreign Plan funded through insurance, or the book reserve established for any Company Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Company Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations. There are no liabilities of the Symyx Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (g) No Company Employee Plan that is an employee welfare benefit plan (whether or not ERISA applies to such Company Employee Plan) is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Symyx Corporations or any Company Affiliate), or reflects or represents any liability of any of the Symyx Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the Symyx Corporations or any Company Affiliate, none of the Symyx Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 2.16(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 2.16(i) of the Company Disclosure Schedule, each of the Symyx Corporations and Company Affiliates: (i) is, and since January 1, 2008 has been, in compliance in all material respects with all Legal Requirements and any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (ii) has paid all wages, salaries and other payments to Company Associates at the time required by all Legal Requirements and has withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the ordinary course of business and consistent with past practice). (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No Symyx Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for additional taxes payable pursuant to Section 409A of the Code. (k) Each of the Symyx Corporations is, and has been at all times since January 1, 2008, in compliance in all material respects with the Worker Adjustment and Retraining Notification Act or any similar Legal Requirement. (l) Each of the Company Option Plans and the Company ESPP has been approved by the Company’s stockholders to the extent required by applicable Legal Requirements.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge of the Company, no employee of any of the Acquired Corporations Company Employee is a party to or is bound by any confidentiality agreement, noncompetition agreement that prevents or other Contract (impairs, or purports to prevent or impair, in any material respect, such Employee from performing his or her intended job function with any Person) the Company, or that is reasonably likely to otherwise may have a material adverse effect on the Acquired Corporations taken as a wholeCompany Material Adverse Effect. (db) As Except as set forth in Part 2.13(b) of the Company Disclosure Schedule, as of the date of this Agreement, none neither the Company nor any of the Acquired Corporations its Subsidiaries is a party to or bound by any union Contract or collective bargaining agreement. (e) As agreement or other Contract with a labor organization representing any Company Employee, and there are no labor organizations representing, purporting to represent or, to the Knowledge of the date of this AgreementCompany, none of the Acquired Corporations is engaged in seeking to represent any unfair labor practice of any natureCompany Employee. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity. There is no material claim or grievance pending or, to the Knowledge of the Company, threatened in writing relating to any employment Contract, wages and hours, plant closing notification, labor dispute, immigration or discrimination matters involving any Company Employee, including charges of unfair labor practices or harassment complaints, except as would not reasonably be expected to have a Company Material Adverse Effect. (c) None of the current independent contractors of the Company or any of its Subsidiaries could reasonably be reclassified as an employee, except as would not reasonably be expected to have a Company Material Adverse Effect. (d) The Company has made available to Parent an accurate and complete copy of each Company Employee Plan, each Company Employee Agreement each material document prepared in connection with such Company Employee Plan, including without limitation (j) each trust or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the three (3) most recent annual reports (Form 5500 series and all schedules and financial statements attached thereto), if any, required under ERISA or the Code, (iv) the most recent Internal Revenue Service opinion or determination letter for each Company Employee Plan intended to qualify under the Code, (v) the most recent actuarial report and financial statement and (vi) the standard form of all agreements and instruments relating to or issued under each Company Option Plan, employee stock purchase plan and all agreements and instruments relating to or issued under the Company Option Plans or Company Options that differ in any material respect from such standard form agreements. (e) Except as would not reasonably be expected to result in a Company Material Adverse Effect, each Company Employee Plan is now and always has been operated in accordance with its terms and the requirements of all applicable Legal Requirements, including (without limitation) ERISA and the Code. Each of the Company and Company Affiliates has performed in all material respects all obligations required to be performed by them under each Company Employee Plan, except as would not reasonably be expected to result in a Company Material Adverse Effect. All contributions, premiums or payments required to be made or accrued with respect to any Company Employee Plan have been made or accrued on or before their due dates. (f) Each Company Employee Plan intended to qualify under Section 401(a) or Section 401(k) of the Code and each trust intended to qualify under Section 501(a) of the Code has received a favorable determination, opinion, notification or advisory letter from the Internal Revenue Service with respect to such Company Employee Plan as to its qualified status under the Code, and, to the Company’s Knowledge, no fact or event has occurred since the date of such letter from the Internal Revenue Service to adversely affect the qualified status of any such Plan or the exempt status of any such trust. (g) The Company has never maintained any employee benefit plan subject to Title IV of ERISA. (h) Except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan or Company Employee Agreement that will or may result (either alone or in connection with any other circumstance or event) in any material payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee. (i) There is no agreement, contract or arrangement to which the Company is a party that could, individually or collectively, result in the payment of any amount that would not be deductible by reason of Section 404 of the Code. The Company is not a party to any contract nor has granted any compensation, equity or award that would reasonably be expected to be deemed deferred compensation subject to the additional 20% tax under Section 409A of the Code, and the Company has no liability or obligation to make any payment or to issue any equity award or bonus that could be deemed deferred compensation subject to the additional 20% tax under Section 409A of the Code. (j) The Company has made available a complete and accurate list of the current employees and consultants of the Company as of the date of this Agreement, including such employee or consultant’s name, title or position, present annual compensation (including salaries, bonuses, commissions and deferred compensation) and years of service. As of the date of this Agreement, the Company has not made any commitments to effect any increases or changes in any such employee’s or consultant’s wage, salary, other benefits or insurance provided to such employees or consultants. (k) Except as set forth in Part 2.13(k) of the Company Disclosure Schedule, as of the date of this Agreement, there are no outstanding loans from the Company for borrowed money (whether or not evidenced by promissory notes) to any current or former employee, director or other service provider. (l) Except as set forth in Part 2.13(l) of the Company Disclosure Schedule, no loan from the Company for borrowed money to any current or former employee, director or other service provider of the Company was outstanding as of January 1, 2002 or has been made since January 1, 2002, in each case, which has not been either (i) repaid in full or (ii) cancelled by the Company, provided that the Company has paid all material Taxes and Tax gross-up payments in connection with such cancellation.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.15(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Owl Corporations' ’ employees is terminable by the applicable Acquired Owl Corporation at will will, without severance or payment of compensation other than wages earned and paid time off benefits earned but not taken through the date of termination. No current or former independent contractor of the Owl Corporations could reasonably be deemed to be a misclassified employee. No independent contractor (subject i) has provided services to notice periods not any of the Owl Corporations for a period of six consecutive months or longer than sixty or (60ii) days)is eligible to participate in any Company Employee Plan. No Owl Corporation could be considered a joint or co-employer of any temporary or leased employees from a third party that worked at any of the Owl Corporations. (cb) To Except as set forth in Part 2.15(b) of the Company Disclosure Schedule, none of the Owl Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the Knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureOwl Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Owl Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. The Owl Corporations are not and have not engaged in any unfair labor practices as defined in the National Labor Relations Act of 1947, as amended “the “NLRA”), and there is no claim or grievance pending or, to the Knowledge of the Company, threatened against any Owl Corporation relating to any employment Contract, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, as of the date of this Agreement, of each Company Employee Plan and each Company Employee Agreement. None of the Owl Corporations intends, and none of the Owl Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; and (vi) all material correspondence in its possession regarding any Company Employee Plan regarding any audit, investigation or proceeding regarding such Company Employee Plan or any fiduciary thereof. (e) Each of the Owl Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan and Company Employee Agreement, and each Company Employee Plan and Company Employee Agreement has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Owl Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the Knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan or any fiduciary thereof. There are no actions, suits or claims pending or, to the Knowledge of the Company, threatened or reasonably anticipated (other than routine claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan. None of the Owl Corporations, and no Company Affiliate, has ever incurred: (i) any material penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the Owl Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan and each Company Employee Agreement. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code. (f) None of the Owl Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; (iv) Company Employee Plan intended to be qualified under Section 401(a) of the Code; or (v) Company Foreign Plan. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Owl Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Owl Corporations or any Company Affiliate is or was held as a plan asset. There are no material liabilities of the Owl Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (g) None of the Owl Corporations, and no Company Affiliate, maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Owl Corporations or any Company Affiliate), or reflects or represents any liability of any of the Owl Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. None of the Owl Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 2.15(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or in connection with any other circumstance or event) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 2.15(i) of the Company Disclosure Schedule, each of the Owl Corporations and Company Affiliates: (i) is, and has at all times been, in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body, respecting employment, employment practices, terms and conditions of employment, wages, hours, worker classification (including the proper classification of workers as independent contractors and consultants), occupational safety and health and employment practices, including the Immigration Reform and Control Act, or other labor related matters; (ii) has, to the Knowledge of the Company, withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not, to the Knowledge of the Company, liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable to the foregoing; (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practice); and (v) is not liable for any unpaid wages, compensation, wage-related penalties, or other sums for failure to comply with any of the foregoing. There are no controversies pending, or to the Knowledge of the Company, threatened between any of the Owl Corporations and any current or former employee, which controversies would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or investigation before any Governmental Body. (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No Owl Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for taxes payable pursuant to Section 409A of the Code. (k) None of the Owl Corporations has effectuated a “plant closing,” partial “plant closing,” “relocation,” “mass layoff” or “termination” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the Owl Corporations. (l) Each Company Employee Plan and Company Employee Agreement that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance in all material respects with Section 409A of the Code and has complied in all material respects with applicable documentary requirements of Section 409A of the Code. No stock right or other equity option or appreciation right granted under any benefit plan has an exercise price that is less than the fair market value of the underlying stock or equity units (as the case may be) as of the date such option or right was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as employment of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreement, the employment of each of the Acquired Corporations' Company employees is terminable by the applicable Acquired Corporation Company at will (subject or otherwise in accordance with general principles of wrongful termination law). The Company has made available to notice periods not longer than sixty (60) days)the Acquiror accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and other materials relating to the employment of Company Associates to the extent currently effective and material. (cb) To the Knowledge of the Company, no employee of any officer or Key Employee of the Acquired Corporations is a party Company intends to terminate his or is bound by any confidentiality agreementher employment with the Company, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreementnor, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any nature. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there is not now pending, and to the Knowledge of the Company, no Person has any such officer or Key Employee threatened or expressed in writing any intention to commencedo so. (c) The Company is not a party to, bound by, or has a duty to bargain under, any such collective bargaining agreement or other Contract with a labor organization representing any of its employees, and there are no labor organizations representing, purporting to represent or, to the Knowledge of the Company, seeking to represent any employees of the Company. (d) There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar union activity or dispute, affecting the Company. (e) The Company neither is nor has been engaged in any unfair labor practice within the meaning of the National Labor Relations Act. There is no Legal Proceeding, claim, labor dispute or union organizing activity grievance pending or, to the Knowledge of the Company, threatened or reasonably anticipated relating to any employment contract, privacy right, labor dispute, wages and hours, leave of absence, plant closing notification, harassment, retaliation, immigration, employment statute or regulation, safety or discrimination matter involving any Company Associate, including charges of unfair labor practices or discrimination complaints. Schedule 2.13(e) of the Company Disclosure Letter lists all written and describes all non-written employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, equity-based, incentive, deferred compensation, retirement or supplemental retirement, profit sharing, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs and other similar fringe or employee benefit plans, programs or arrangements, including any employment or executive compensation or severance agreements, written or otherwise, which are currently in effect relating to any Company Associate or which is maintained by, administered or contributed to by, or required to be contributed to by, the Company or any similarCompany Affiliate, or under which the Company or any Company Affiliate has any current or may incur liability after the date hereof (each, a “Company Employee Plan”). (f) With respect to Company Options granted pursuant to the Company Stock Option Plan, (i) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code, to the Knowledge of the Company, so qualifies, (ii) each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Board of Directors of the Company (or a duly constituted and authorized committee thereof or a duly authorized officer of the Company) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each Company Option grant was made in accordance with the terms of the Company Stock Option Plan and all other applicable laws and regulatory rules or requirements and (iv) the per share exercise price of each Company Option was no less than the fair market value of a share of Company Common Stock on the applicable Grant Date. (g) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or opinion letter with respect to such qualified status from the Internal Revenue Service. To the Knowledge of the Company, nothing has occurred that could reasonably be expected to adversely affect the qualified status of any such Company Employee Plan or the exempt status of any related trust. (h) Each Company Employee Plan has been maintained in compliance, in all material respects, with its terms and, both as to form and operation, with all applicable Legal Requirements, including without limitation, the Code and ERISA. (i) The Company has not engaged in any transaction in violation of Sections 404 or 406 of ERISA or any “prohibited transaction,” as defined in Section 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or (d) of the Code, or has otherwise violated the provisions of Part 4 of Title I, Subtitle B of ERISA. The Company has not knowingly participated in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any Company Employee Plan subject to ERISA and has not been assessed any civil penalty under Section 502(l) of ERISA. (j) No Company Employee Plan is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, and neither the Company nor any Company Affiliate has ever maintained, contributed to or partially or completely withdrawn from, or incurred any obligation or liability with respect to, any such plan. No Company Employee Plan is a Multiemployer Plan, and neither the Company nor any Company Affiliate has ever contributed to or had an obligation to contribute, or incurred any liability in respect of a contribution, to any Multiemployer Plan. No Company Employee Plan is a Multiple Employer Plan. (k) No Company Employee Plan provides for medical or death benefits beyond termination of service or retirement, other than (i) pursuant to COBRA or an analogous state law requirement or (ii) death or retirement benefits under a Company Employee Plan qualified under Section 401(a) of the Code. (l) The Company is not a party to any Contract that has resulted or could reasonably be expected to result, separately or in the aggregate, in the payment of (i) any “excess parachute payment” within the meaning of Section 280G of the Code and (ii) any amount the deduction for which would be disallowed under Section 162(m) of the Code. (m) To the Knowledge of the Company, no payment pursuant to any Company Employee Plan or other arrangement to any “service provider” (as such term is defined in Section 409A of the Code and the United States Treasury Regulations and IRS guidance thereunder) to the Company, including the grant, vesting or exercise of any stock option, would subject any Person to tax pursuant to Section 409A(1) of the Code, whether pursuant to the Contemplated Transactions or otherwise. (n) The Company has complied in all material respects with all state and federal laws applicable to employees, including but not limited to COBRA, FMLA, and HIPPA. (o) The Company is in material compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime wages), compensation, and hours of work, and in each case, with respect to Employees: (i) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to Employees, (ii) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no actions, suits, claims or administrative matters pending, or to the Knowledge of the Company as of the date hereof, threatened or reasonably anticipated against the Company, relating to any Company employee, employment agreement or Company Employee Plan. The Company is not party to a conciliation agreement, consent decree or other agreement or order with any federal, state, or local agency or governmental authority with respect to employment practices. To the Knowledge of the Company, the Company has no material liability with respect to any misclassification of: (A) any Person as an independent contractor rather than as an employee, (B) any employee leased from another employer, or (C) any employee currently or formerly classified as exempt from overtime wages. Since January 1, 2008, the Company has not taken any action which would constitute a “plant closing” or “mass layoff” within the meaning of the WARN Act or similar state or local law, issued any notification of a plant closing or mass layoff required by the WARN Act or similar state or local law, or incurred any liability or obligation under WARN or any similar state or local law that remains unsatisfied. No terminations prior to the Closing would trigger any notice or other obligations under the WARN Act or similar state or local law.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as To the knowledge of the date of this Agreement the following informationCompany, accurate no current Company Employee is in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee violation of any noncompetition agreement as a result of his or her employment by the Acquired Corporations who is on Company or any of its Subsidiaries or as a leave result of absence his or on layoff status): (i) her providing services to the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002Company or its Subsidiaries. (b) As Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other Contract with a labor organization representing any Company Employee, and there are no labor organizations representing, purporting to represent or, to the date of this Agreement, the employment of each of the Acquired Corporations' employees is terminable by the applicable Acquired Corporation at will (subject to notice periods not longer than sixty (60) days). (c) To the Knowledge knowledge of the Company, no employee of seeking to represent any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any naturecurrent Company Employee. From January 1, 2002 through the date of this Agreement, there has not been any slowdown, work stoppage, labor dispute or union organizing activity, or any similar activity or dispute, affecting any of the Acquired Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the Company, no Person has threatened in writing to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity. There is no material claim or grievance pending or, to the knowledge of the Company, threatened in writing relating to any employment Contract, wages and hours, plant closing notification, labor dispute, immigration or discrimination matters involving any Company Employee, including charges of unfair labor practices or harassment complaints. There is no Legal Proceeding pending or, to the knowledge of the Company, threatened, with respect to which any current or former director, officer, employee or agent of the Company or any of its Subsidiaries is claiming indemnification from the Company or any of its Subsidiaries. (c) None of the current independent contractors of the Company or any of its Subsidiaries could reasonably be reclassified as an employee, the effect of which would be material to the Company and its Subsidiaries. (d) Part 2.13(d) of the Company Disclosure Schedule sets forth an accurate and complete list of each material Company Employee Plan. (e) The Company has delivered or made available to Parent accurate and complete copies of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents (or other funding or financing arrangement). The Company has made available to Parent all current summary plan descriptions and all determination letters or opinion letters for the IRS with respect to each Company Employee Plan, as applicable, and all administrative service agreements and Form 5500s for the previous two years with respect to each Company Employee Plan, as applicable. (f) (i) Each of the Company and Company Affiliates has performed all material obligations required to be performed by them under each Company Employee Plan and each Company Employee Agreement and is not in any material respect in default under or in violation of any Company Employee Plan or Company Employee Agreement, and (ii) each Company Employee Plan and Company Employee Agreement has been established and maintained in all material respects in accordance with its terms and has been operated in material compliance with ERISA, the Code, and other applicable Legal Requirements, as applicable, and (iii) no action or proceeding (other than claims for benefits in the ordinary course) is pending or, to the knowledge of the Company, threatened in writing with respect to any Company Employee Plan or Company Employee Agreement by any current or former employee, officer or director of the Company or any of its Subsidiaries. (g) Neither the Company nor any Company Affiliate has ever maintained, sponsored, contributed to or otherwise incurred any present or contingent liability with respect to any “single-employer plan”, as defined in Section 4001(a)(15) of ERISA, and neither the Company nor any Company Affiliate has any present or contingent liability under Title IV of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to the Company or any Company Affiliate. (h) Except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (whether alone, or in connection with any other event) constitute an event under any Company Employee Plan or Company Employee Agreement that will or may (i) result in any payment (including any retention bonuses, parachute payments or non-competition payments) becoming due to any employee or former employee or group of employees or former employees of the Company or any of its Subsidiaries, (ii) increase any benefits otherwise payable under any Company Employee Plan or any Company Employee Agreement, or (iii) result in the acceleration of the time of payment or vesting of any Options, Restricted Stock, or any other rights or benefits. Part 2.13(h) of the Company Disclosure Schedule sets forth a reasonable good faith estimate of the amount of any estimated severance payment (not including the effect of the transactions contemplated by Section 5.3(a)) owed under any Company Employee Plan or any Company Employee Agreement due to the Contemplated Transactions and any subsequent termination of employment. (i) There is no agreement, plan, arrangement or other Contract covering any Company Employee, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). Neither the Company nor any of its Subsidiaries is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code.

Employee and Labor Matters; Benefit Plans. (a) The Company Disclosure Schedule accurately sets forth as To the knowledge of the date of this Agreement Company, no Company Employee is a party to or is bound by any noncompetition agreement or other Contract (with any Person) that may have a material effect on the following information, accurate in all material respects, with respect to each employee of each business or operations of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002Company. (b) As of the date of this Agreement, the employment of each Company is not a party to, nor does it have a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization representing any Company Employee, and there are no labor organizations representing, purporting to represent or, to the knowledge of the Acquired Corporations' employees Company, seeking to represent any Company Employee. There is terminable by not now pending, and, to the applicable Acquired Corporation at will (subject knowledge of the Company, no Person has threatened in writing to notice periods not longer than sixty (60) days)commence, any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute, question regarding representation or union organizing activity or any similar activity. There is no material claim or grievance pending or, to the knowledge of the Company, threatened in writing relating to any employment Contract, wages and hours, plant closing notification, labor dispute, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) To the Knowledge None of the Company, no employee current or former independent contractors of the Company or any of the Acquired Corporations is a party to or is bound by any confidentiality agreementits Subsidiaries could reasonably be reclassified as an employee, noncompetition agreement or other Contract (with any Person) that is except as would not have and would not reasonably likely be expected to have a material adverse effect on the Acquired Corporations taken as a wholeCompany Material Adverse Effect. (d) As of the date of the Agreement, Part 2.13(d) of the Company Disclosure Schedule sets forth an accurate and complete list of each Company Employee Plan and each Company Employee Agreement: (i) involving obligations in excess of $100,000 per annum or (ii) that constitutes a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC). Except as provided in this Agreement, none the Company does not intend, nor has it committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except (A) to the extent such new Company Employee Plan or Company Employee Agreement, or modification thereof would not (i) involve obligations in excess of $100,000 per annum or (ii) constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Acquired Corporations is a party SEC) or (B) to conform any such Company Employee Plan or bound by Company Employee Agreement to the requirements of any union Contract or collective bargaining agreementapplicable Legal Requirements). (e) As The Company has delivered or made available to Parent accurate and complete copies of, as of the date of this Agreement: (i) documents setting forth the material terms of each Company Employee Plan, none including all amendments thereto and all related trust documents; (ii) the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the Acquired Corporations is engaged in any unfair labor practice most recent annual and periodic accounting of any nature. From Company Employee Plan assets, if any; (iv) the most recent summary plan description required under ERISA with respect to each Company Employee Plan; (v) all administrative service agreements and group insurance contracts; (vi) all material correspondence since January 1, 2002 2004 to or from any Governmental Body relating to any Company Employee Plan; (vii) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the most recent plan year; and (viii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (f) Each of the Company and Company Affiliates has performed all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in accordance with its terms and in compliance with ERISA and, where applicable, the Code, except as would not reasonably be expected to result in a Company Material Adverse Effect. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and to the knowledge of the Company, no circumstance has occurred or exists which might cause such plan to cease being so qualified. To the knowledge of the Company, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material liability to Parent, the Company or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened in writing by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan. There is no pending or, to the knowledge of the Company, threatened claim in respect of any of the Company Employee Plans other than claims for benefits in the ordinary course of business. Neither the Company nor any Company Affiliate has ever incurred any material penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the date Code. (g) Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. Neither the Company nor any Company Affiliate has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of the Company or any Company Affiliate is or was held as a plan asset. There are no material liabilities of the Company with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (h) Neither the Company nor any Company Affiliate maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Company or any Company Affiliate), or reflects or represents any liability of the Company or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Each of the Company and the Company Affiliates has complied with the health care continuation requirements of Part 6 of Title I of ERISA, except as would not reasonably be expected to result in a Company Material Adverse Effect. (i) Except as expressly required or provided by this Agreement, there neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any material payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (j) Each of the Company and Company Affiliates: (i) is, and at all times has not been been, in compliance in all material respects with any slowdownOrder or arbitration award of any court, work stoppage, labor dispute or union organizing activity, arbitrator or any similar activity Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or disputeother labor related matters; and (ii) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, affecting social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practice), except in each case as would not reasonably be expected to result in any liability that is material to the Company and its Subsidiaries taken as a whole. (k) Except as set forth in Part 2.13(k) of the Acquired Corporations or any of their employees. As Company Disclosure Schedule, as of the date of this Agreement, there is not now pendingno agreement, and plan, arrangement or other Contract covering any Company Employee, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the Knowledge payment of any amount that would not be deductible pursuant to Section 162(m) of the Company, no Person has threatened to commence, any such slowdown, work stoppage, labor dispute or union organizing activity Code (or any similarcomparable provision under state or foreign Tax laws). The Company is not a party and does not have any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code. (l) The Company ESPP permits the Company to take the actions set forth in Section 5.3(b) without the approval or consent of any participant in the Company ESPP. (m) The Company is in compliance in all material respects with the Workers Adjustment and Retraining Notification Act (“WARN”) and any similar state statute and has no liabilities pursuant to WARN or any similar state statute.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.15(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Company Corporations' ’ employees is terminable by the applicable Acquired Company Corporation at will will, without severance or payment of compensation other than wages earned and paid time off benefits earned but not taken through the date of termination. No current or former independent contractor of the Company Corporations could reasonably be deemed to be a misclassified employee. No independent contractor (subject i) has provided services to notice periods not any of the Company Corporations for a period of six consecutive months or longer than sixty or (60ii) days)is eligible to participate in any Company Employee Plan. No Company Corporation could be considered a joint or co-employer of any temporary or leased employees from a third party that worked at any of the Company Corporations. (cb) To Except as set forth in Part 2.15(b) of the Company Disclosure Schedule, none of the Company Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the Knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureCompany Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Company Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. The Company Corporations are not and have not engaged in any unfair labor practices as defined in the National Labor Relations Act of 1947, as amended “the “NLRA”), and there is no claim or grievance pending or, to the Knowledge of the Company, threatened against any Company Corporation relating to any employment Contract, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers’ compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, as of the date of this Agreement, of each Company Employee Plan and each Company Employee Agreement. None of the Company Corporations intends, and none of the Company Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to the minimum funding standards of Section 302 of ERISA, the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; and (vi) all material correspondence in its possession regarding any Company Employee Plan regarding any audit, investigation or proceeding regarding such Company Employee Plan or any fiduciary thereof. (e) Each of the Company Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan and Company Employee Agreement, and each Company Employee Plan and Company Employee Agreement has been established and maintained in all material respects in accordance with its terms and applicable Legal Requirements. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Company Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the Knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan or any fiduciary thereof. There are no actions, suits or claims pending or, to the Knowledge of the Company, threatened or reasonably anticipated (other than routine claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan. None of the Company Corporations, and no Company Affiliate, has ever incurred: (i) any material penalty or tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code; or (ii) any material penalty or Tax under applicable Legal Requirements. Each of the Company Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan and each Company Employee Agreement. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code. (f) None of the Company Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; (iv) Company Employee Plan intended to be qualified under Section 401(a) of the Code; or (v) Company Foreign Plan. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Company Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Company Corporations or any Company Affiliate is or was held as a plan asset. There are no material liabilities of the Company Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (g) None of the Company Corporations, and no Company Affiliate, maintains, sponsors or contributes to any Company Employee Plan that is an employee welfare benefit plan (as such term is defined in Section 3(1) of ERISA) and that is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Company Corporations or any Company Affiliate), or reflects or represents any liability of any of the Company Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. None of the Company Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 2.15(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or in connection with any other circumstance or event) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 2.15(i) of the Company Disclosure Schedule, each of the Company Corporations and Company Affiliates: (i) is, and has at all times been, in compliance in all material respects with any Order or arbitration award of any court, arbitrator or any Governmental Body, respecting employment, employment practices, terms and conditions of employment, wages, hours, worker classification (including the proper classification of workers as independent contractors and consultants), occupational safety and health and employment practices, including the Immigration Reform and Control Act, or other labor related matters; (ii) has, to the Knowledge of the Company, withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not, to the Knowledge of the Company, liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable to the foregoing; (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the normal course of business and consistent with past practice); and (v) is not liable for any unpaid wages, compensation, wage-related penalties, or other sums for failure to comply with any of the foregoing. There are no controversies pending, or to the Knowledge of the Company, threatened between any of the Company Corporations and any current or former employee, which controversies would reasonably be expected to result in an action, suit, proceeding, claim, arbitration or investigation before any Governmental Body. (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No Company Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for taxes payable pursuant to Section 409A of the Code. (k) None of the Company Corporations has effectuated a “plant closing,” partial “plant closing,” “relocation,” “mass layoff” or “termination” (as defined in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any similar Legal Requirement) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of any of the Company Corporations. (l) Each Company Employee Plan and Company Employee Agreement that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance in all material respects with Section 409A of the Code and has complied in all material respects with applicable documentary requirements of Section 409A of the Code. No stock right or other equity option or appreciation right granted under any benefit plan has an exercise price that is less than the fair market value of the underlying stock or equity units (as the case may be) as of the date such option or right was granted, or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right.

Employee and Labor Matters; Benefit Plans. (a) The Except as set forth in Part 2.16(a) of the Company Disclosure Schedule accurately sets forth or as of the date of this Agreement the following information, accurate in all material respects, with respect to each employee of each of the Acquired Corporations (including any employee of any of the Acquired Corporations who is on a leave of absence or on layoff status): (i) the name of such employee, the Acquired Corporation required by which such employee is employed and the date as of which such employee was originally hired by such Acquired Corporation; (ii) such employee's title; and (iii) the salary received by such employee (A) with respect to services performed in 2001 and (B) with respect to services performed from January 1 through November 30, 2002. (b) As of the date of this Agreementapplicable Legal Requirements, the employment of each of the Acquired Symyx Corporations' ’ employees is terminable by the applicable Acquired Symyx Corporation at will (subject to notice periods not longer than sixty (60) days)will. (cb) To Except as set forth in Part 2.16(b) of the Knowledge Company Disclosure Schedule, none of the Symyx Corporations is a party to, or has a duty to bargain for, any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees and there are no labor organizations or works councils representing, purporting to represent or, to the knowledge of the Company, no employee seeking to represent any employees of any of the Acquired Corporations is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with any Person) that is reasonably likely to have a material adverse effect on the Acquired Corporations taken as a whole. (d) As of the date of this Agreement, none of the Acquired Corporations is a party to or bound by any union Contract or collective bargaining agreement. (e) As of the date of this Agreement, none of the Acquired Corporations is engaged in any unfair labor practice of any natureSymyx Corporations. From January 1, 2002 through the date of this Agreement, there There has not been any strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute or dispute, question concerning representation, union organizing activity, or any threat thereof, or any similar activity or dispute, affecting any of the Acquired Symyx Corporations or any of their employees. As of the date of this Agreement, there There is not now pending, and and, to the Knowledge knowledge of the Company, no Person has threatened to commence, any such strike, slowdown, work stoppage, lockout, job action, picketing, labor dispute dispute, question regarding representation or union organizing activity or any similarsimilar activity or dispute. Except as set forth in Part 2.16(b) of the Company Disclosure Schedule, there is no claim or grievance pending or, to the knowledge of the Company, threatened relating to any Company Employee Agreement, wages and hours, leave of absence, plant closing notification, employment statute or regulation, privacy right, labor dispute, workers' compensation policy or long-term disability policy, safety, retaliation, immigration or discrimination matters involving any Company Associate, including charges of unfair labor practices or harassment complaints. (c) The Company has delivered or Made Available to Parent an accurate and complete list, by country and as of the date hereof, of each Company Employee Plan and each Company Employee Agreement. None of the Symyx Corporations intends, and none of the Symyx Corporations has committed, to establish or enter into any new Company Employee Plan or Company Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable Legal Requirements, in each case as previously disclosed to Parent in writing or as required by this Agreement). (d) The Company has delivered or Made Available to Parent accurate and complete copies of: (i) all documents setting forth the terms of each Company Employee Plan and each Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under applicable Legal Requirements in connection with each Company Employee Plan; (iii) if the Company Employee Plan is subject to any minimum funding standards (including those of Section 302 of ERISA), the most recent annual and periodic accounting of Company Employee Plan assets, if any; (iv) the most recent summary plan description together with the summaries of material modifications thereto, if any, required under ERISA or any similar Legal Requirement with respect to each Company Employee Plan; (v) all material written Contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) all discrimination tests required under the Code for each Company Employee Plan intended to be qualified under Section 401(a) of the Code for the three most recent plan years; and (vii) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code. (e) Each of the Symyx Corporations and Company Affiliates has performed in all material respects all obligations required to be performed by it under each Company Employee Plan, and each Company Employee Plan has been established and maintained in all material respects in accordance with its terms. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code. All Company Employee Plans required to have been approved by any foreign Governmental Body have been so approved, no such approval has been revoked (or, to the knowledge of the Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or application therefor relating to any such Company Employee Plan that would reasonably be expected to materially affect any such approval relating thereto or materially increase the costs relating thereto. Each Company Employee Plan intended to be tax qualified under applicable Legal Requirements is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan (other than any Company Employee Plan to be terminated prior to the Effective Time in accordance with this Agreement) can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without liability to Parent, any of the Symyx Corporations or any Company Affiliate (other than any liability for ordinary administration expenses). There are no audits or inquiries pending or, to the knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to any Company Employee Plan. Except as set forth in Part 2.16 of the Company Disclosure Schedule, there are no pending or, to the knowledge of the Company, threatened claims or Legal Proceedings involving any Company Employee Plan other than routine claims for benefits. None of the Symyx Corporations, and no Company Affiliate, has ever incurred any material penalty or Tax with respect to any Company Employee Plan under applicable Legal Requirements. Each of the Symyx Corporations and Company Affiliates has made all contributions and other payments required by and due under the terms of each Company Employee Plan. Neither the terms nor the performance of any Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross income inclusion prior to, on or after the Effective Time pursuant to Section 409A(a)(1)(A) of the Code. (f) None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any: (i) Company Pension Plan subject to Title IV of ERISA; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) plan described in Section 413 of the Code. No Company Employee Plan is or has been funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. None of the Symyx Corporations, and no Company Affiliate, has ever maintained, established, sponsored, participated in or contributed to any Company Pension Plan in which stock of any of the Symyx Corporations or any Company Affiliate is or was held as a plan asset. The fair market value of the assets of each funded Company Foreign Plan, the liability of each insurer for any Company Foreign Plan funded through insurance, or the book reserve established for any Company Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Company Foreign Plan according to the reasonable actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no Contemplated Transaction will cause any such assets or insurance obligations to be less than such benefit obligations. There are no liabilities of the Symyx Corporations with respect to any Company Employee Plan that are not properly accrued and reflected in the financial statements of the Company in accordance with GAAP. (g) No Company Employee Plan that is an employee welfare benefit plan (whether or not ERISA applies to such Company Employee Plan) is, in whole or in part, self-funded or self-insured. No Company Employee Plan provides (except at no cost to the Symyx Corporations or any Company Affiliate), or reflects or represents any liability of any of the Symyx Corporations or any Company Affiliate to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Legal Requirements. Other than commitments made that involve no future costs to any of the Symyx Corporations or any Company Affiliate, none of the Symyx Corporations nor any Company Affiliate has ever represented, promised or contracted (whether in oral or written form) to any Company Associate (either individually or to Company Associates as a group) or any other Person that such Company Associate(s) or other Person would be provided with post-termination or retiree life insurance, post-termination or retiree health benefit or other post-termination or retiree employee welfare benefits, except to the extent required by applicable Legal Requirements. (h) Except as set forth in Part 2.16(h) of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will or would reasonably be expected to (either alone or upon the occurrence of termination of employment) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result (either alone or in connection with any other circumstance or event) in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate. (i) Except as set forth in Part 2.16(i) of the Company Disclosure Schedule, each of the Symyx Corporations and Company Affiliates: (i) is, and since January 1, 2008 has been, in compliance in all material respects with all Legal Requirements and any Order or arbitration award of any court, arbitrator or any Governmental Body respecting employment, employment practices, terms and conditions of employment, wages, hours or other labor related matters; (ii) has paid all wages, salaries and other payments to Company Associates at the time required by all Legal Requirements and has withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to Company Associates; (iii) is not liable for any arrears of wages or any taxes or any interest or penalty for failure to comply with the Legal Requirements applicable of the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security, social charges or other benefits or obligations for Company Associates (other than routine payments to be made in the ordinary course of business and consistent with past practice). (j) There is no agreement, plan, arrangement or other Contract covering any Company Associate, and no payments have been made or will be made in connection with the Merger to any Company Associate, that, considered individually or considered collectively with any other such Contracts or payments, will, or would reasonably be expected to, be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code or give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code (or any comparable provision under state or foreign Tax laws). No Symyx Corporation is a party to or has any obligation under any Contract to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or for additional taxes payable pursuant to Section 409A of the Code. (k) Each of the Symyx Corporations is, and has been at all times since January 1, 2008, in compliance in all material respects with the Worker Adjustment and Retraining Notification Act or any similar Legal Requirement. (l) Each of the Company Option Plans and the Company ESPP has been approved by the Company’s stockholders to the extent required by applicable Legal Requirements.